EXHIBIT 4.6
CONFORMED COPY
DATED 14 APRIL, 2003
DIAGEO PLC
AND
PERNOD RICARD S.A.
-----------------------------------
AMENDING AGREEMENT
TO SOFIA
AN AGREEMENT DATED 21 DECEMBER 2002
RELATING TO THE TERMINATION OF
THE FRAMEWORK AND IMPLEMENTATION AGREEMENT
-----------------------------------
SLAUGHTER AND MAY
ONE BUNHILL ROW
LONDON EC1Y 8YY
(JADM/HLD)
CE023500040
THIS AGREEMENT is made on 14 April, 2003
BETWEEN:
1. DIAGEO PLC, a company incorporated in England and Wales under
registered number 23307 whose registered office is at 8 Henrietta
Place, London W1G 0NB, United Kingdom and when acting in its capacity
as Primary Purchaser under this Agreement, acting as trustee for
certain of its Affiliates ("DIAGEO"); and
2. PERNOD RICARD S.A., a company incorporated in France under registered
number RCS Paris B582041943 whose registered office is at 12 place des
Etats-Unis, 75783, Paris, France ("PERNOD RICARD") and which is acting
on behalf of itself and its subsidiaries (but only for so long as they
remain subsidiaries).
WHEREAS:
(A) On 21 December 2002, Diageo and Pernod Ricard entered into an
agreement ("SOFIA") relating to, amongst other things, the termination
of the Framework and Implementation Agreement (as defined in SOFIA).
(B) The parties now wish to amend certain terms of SOFIA.
IT IS AGREED as follows:
1. AMENDMENTS TO SOFIA
SOFIA IS HEREBY AMENDED AND RESTATED IN THE FORM OF THE SCHEDULE TO
THIS AGREEMENT AND HAS EFFECT, AS SO AMENDED AND RESTATED, FROM 21
DECEMBER 2002.
2. ARBITRATION; COUNTERPARTS; CHOICE OF GOVERNING LAW
THE PROVISIONS OF CLAUSES 29, 34 AND 35 OF SOFIA SHALL APPLY TO THIS
AGREEMENT AS IF SET OUT IN THIS AGREEMENT IN FULL.
IN WITNESS OF WHICH THIS AGREEMENT HAS BEEN EXECUTED ON THE DATE WHICH FIRST
APPEARS ON PAGE 1 OF THIS AGREEMENT.
SIGNED BY )
FOR AND ON BEHALF OF ) /s/ Shaun Parker
DIAGEO PLC )
SIGNED BY )
FOR AND ON BEHALF OF ) /s/ Pierre Pringuet
PERNOD RICARD S.A. )
SCHEDULE
3
EFFECTIVE 21 DECEMBER 2002
DIAGEO PLC
PERNOD RICARD S.A.
---------------------------------------
SOFIA: AN AGREEMENT
RELATING TO THE TERMINATION OF THE
FRAMEWORK AND IMPLEMENTATION AGREEMENT
(AS AMENDED AND RESTATED BY AN AMENDING AGREEMENT
DATED 14 APRIL 2003)
---------------------------------------
Macfarlanes
10 Norwich Street
London EC4A 1BD
CONTENTS
CLAUSE PAGE
- ------ ----
1 Definitions and interpretation 2
2 Warranties and Undertakings 10
3 Seagram Companies and Assets 11
4 "Wrong Pocket" Assets, Shared Assets and Joint Assets 12
5 Diageo and Pernod Ricard Liabilities 15
6 Shared and Joint Liabilities 22
7 Claims against Vivendi 28
8 Guarantee of FIA Identified Transactions 30
9 Guarantees and other assurances 30
10 Assets and liabilities leaving the groups 31
11 Payments 32
12 Misdirected cash receipts 33
13 Miscellaneous obligations of the parties 34
14 Insurance 35
15 Market Plan and Risk Properties 35
16 Jointly-owned Entities 36
17 Access to information and accounts 37
18 Sale of Pernod Ricard On-sale Assets; Seagram Venture Assets,
Additional Assets and Martell 39
19 Termination of the Framework and Implementation Agreement 41
20 Further Assurances and Mitigation 42
21 Confidentiality 42
22 Announcements 44
23 Assignment 44
24 Variation 44
25 Notices 45
26 Dispute Resolution 46
27 Supervisory Committee 46
28 Deadlock Resolution 47
29 Arbitration 48
30 Contracts 49
31 Remedies and waivers 50
32 No partnership 51
33 Costs and expenses 51
34 Counterparts 51
35 Choice of governing law 51
SCHEDULES
1 Identified Assets
2 Brands and Related Assets
3 Companies and Assets
4 Identified Liabilities
5 Taxation provisions
6 Jointly-owned Entities
7 On-sale and Venture Transactions
8 FIA Indemnified Sale and Purchase Agreements
9 Settlement of Framework and Implementation Agreement Obligations
10 Outstanding Matters
11 Treasury Management
12 SOFIA Implementation Principles
EFFECTIVE 21 DECEMBER 2002
PARTIES
1 DIAGEO PLC, a company incorporated in England and Wales under
registered number 23307 whose registered office is at 8 Henrietta
Place, London W1G 0NB, United Kingdom and when acting in its capacity
as Primary Purchaser under this Agreement, acting as trustee for
certain of its Affiliates ("Diageo"); and
2 PERNOD RICARD S.A., a company incorporated in France under registered
number RCS Paris B582041943 whose registered office is at 12 place des
Etats-Unis 75783, Paris, France ("Pernod Ricard") and which is acting
on behalf of itself and its subsidiaries (but only for so long as they
remain subsidiaries).
RECITALS
A On 4 December 2000, Diageo and Pernod Ricard entered into a framework
and implementation agreement (which agreement has subsequently been
amended) (the "Framework and Implementation Agreement") relating to
the acquisition from Vivendi Universal S.A. of certain companies and
assets and the assumption of certain liabilities comprising the
Seagram spirits and wine and beverage businesses (the "Spirits and
Wine Division").
B On 19 December 2000, Diageo and Pernod Ricard entered into the Vivendi
Sale Agreement (as defined below).
C Pursuant to the Vivendi Sale Agreement, Diageo and Pernod Ricard,
certain Jointly-owned Entities and certain of Diageo's Affiliates and
Pernod Ricard's Affiliates (as such terms are defined below) acquired
certain of the companies and assets and assumed certain of the
liabilities comprising the Spirits and Wine Division.
D Diageo and Pernod Ricard desire to agree a basis for the termination
of the Framework and Implementation Agreement and an allocation of the
assets and liabilities comprising the Spirits and Wine Division as
well as the terms on which their relationship as regards the Spirits
and Wine Division is to continue.
E The amounts to be paid to Vivendi in respect of the purchase price
pursuant to the Vivendi Sale Agreement were provisionally allocated to
Diageo and Pernod Ricard purchasing entities initially without regard
to the existence and/or amount of external working capital balances,
cash, indebtedness, wrong pocket assets and liabilities (including
inventory) or Shared Assets and Shared Liabilities (as such terms were
defined in the Framework and Implementation Agreement). Provisions
were included in the Framework and Implementation Agreement to share
the benefit and burden of these items, which represented amounts to be
taken into account in determining the final purchase price for the
assets that the purchasers decided to retain. Diageo and Pernod Ricard
intend these principles to continue to operate as the basis on which
these payments are to be made as purchase price adjustments to the
extent that such matters have not previously been settled.
F In accordance with the principles referred to in Recital E, and
consistent with the corresponding provisions of the Framework and
Implementation Agreement, the parties desire that certain payments be
made between them in respect of certain assets and liabilities where
the economic intention is that Diageo and Pernod Ricard (and their
respective Affiliates) shall share such assets and liabilities in the
Diageo
Proportion and the Pernod Ricard Proportion. However, under this
Agreement, assets and liabilities may be shared in either the Diageo
Proportion and the Pernod Ricard Proportion or in the Sharing
Proportions. Therefore, in order to achieve the economic intention,
where assets and liabilities are shared in the Sharing Proportions,
additional purchase price adjustments shall be made pursuant to the
FIA Identified Sale and Purchase Agreements (as amended).
IT IS AGREED as follows:
DEFINITIONS AND INTERPRETATION
2.1 DEFINITIONS
In this Agreement:
ACQUIRED ASSETS: means the businesses and assets (including shares in
bodies corporate) acquired, directly or indirectly, from Vivendi and
its Affiliates pursuant to the Vivendi Sale Agreement;
ACQUISITION DATE: means 21 December 2001;
AFFILIATE: means:
(i) in relation to any person other than a Jointly-owned Entity,
any other person which directly, or indirectly through one
or more intermediaries, controls, or is controlled by, or is
under common control with, that first person but excluding
any Jointly-owned Entity; and
(ii) in relation to a Jointly-owned Entity, any person which
directly, or indirectly through one or more intermediaries,
is controlled by that Jointly-owned Entity;
and as used in this definition, control (including, with corresponding
meanings, controlled by and under common control with) shall mean
possession, directly or indirectly, of power to direct or cause the
direction of management or policies (whether through ownership of
securities or partnership or other ownership interests, by contract or
otherwise);
AFTER-ACQUIRED ASSETS: means the Acquired Assets listed or described
in paragraph 6 of each of Part A and B of Schedule 1 and paragraph 2
of each of Part A and B of Schedule 2;
AGREED FORM: means, in relation to any document, that document in a
form agreed by the parties;
ASSURANCE: means any guarantee, indemnity or similar commitment;
BRANDS: means those brands of beverage and beverage alcohol which are
comprised in the Acquired Assets;
BUSINESS DAY: means a day (other than a Saturday or Sunday) on which
banks are open for business (other than solely for trading and
settlement in euro) in London and Paris;
2
CLAIMS NOTICE: has the meaning given to it in Clause 6.1;
CLOSING: means the closing of transactions contemplated in the Vivendi
Sale Agreement, which took place on 21 December 2001;
COMPLETION DATE: has the meaning given in Clause 3.5;
CONDUCTING PARTY: means, in the case of certain Third Party
Proceedings, the party which has conduct of such proceedings or, as
the case may be, the relevant part thereof in accordance with Clauses
5.2.6.1, 6.2.1 or 6.6.1 (as the case may be);
DEADLOCK NOTICE: has the meaning set out in Clause 28.1;
DIAGEO ASSETS: means those assets described in Clause 3 as being owned
by Diageo and/or its Affiliates;
DIAGEO LIABILITIES: means, save as expressly provided otherwise in
this Agreement and subject to Clauses 5.1.2 to 5.1.5, each liability,
whenever incurred, which solely or principally relates to Diageo
Assets, together with those other liabilities as are expressed in this
Agreement to be Diageo Liabilities PROVIDED THAT Diageo Liabilities do
not include:-
(i) Historic Tax Liabilities;
(ii) Shared Tax Costs; and
(iii) any liability to the extent that it has been settled between
the parties or their respective Affiliates in accordance
with the Framework and Implementation Agreement, Schedule 9
or otherwise (whether before, on or after the date of this
Agreement);
DIAGEO PROPORTION: means 60.9 per cent.;
FIA ADDITIONAL SALE AND PURCHASE AGREEMENTS: means that additional
sale and purchase agreements entered into in accordance with clause
9.6(A) of the Framework and Implementation Agreement;
FIA IDENTIFIED SALE AND PURCHASE AGREEMENTS: means the identified sale
and purchase agreements referred to in clause 9.5 of the Framework and
Implementation Agreement, brief details of which are set out in
Schedule 8;
FIA IMPLEMENTATION PRINCIPLES: means the implementation principles set
out in clause 4 of the Framework and Implementation Agreement;
FRAMEWORK AND IMPLEMENTATION AGREEMENT: means the framework and
implementation agreement between Diageo plc and Pernod Ricard S.A.
entered into on 4 December 2000 (as amended);
GLOBAL SALE AND PURCHASE AGREEMENT: means the global sale and purchase
agreement entered into among Diageo, Pernod Ricard and others and
dated 21 December 2001;
GUARANTEEING PARTY: means, in respect of any Assurance, the person who
has given that Assurance;
3
HISTORIC LIABILITIES: means any liability which:
(i) (a) was a liability (whether contingent or otherwise) at
Closing; or
(b) is a liability arising out of any event or circumstance
occurring or existing on or before Closing,
(in either case) of any body corporate acquired,
directly or indirectly, by Diageo, Pernod Ricard or any
Jointly-owned Entity or any of their respective
Affiliates pursuant to the Vivendi Sale Agreement; or
(ii) is a liability incurred or assumed, directly or indirectly,
by Diageo, Pernod Ricard or any Jointly-owned Entity or any
of their respective Affiliates pursuant to the Vivendi Sale
Agreement,
but excluding any liability to the extent that it has been settled
between the parties or their respective Affiliates in accordance with
the Framework and Implementation Agreement, Schedule 9 or otherwise
(whether before, on or after the date of this Agreement), or which is
an Historic Tax Liability;
HISTORIC TAX LIABILITY: means any liability to Tax relating to the
Acquired Assets arising from (i) any income, profits or gains earned
accrued or received on or before Closing or (ii) any event or
transaction that occurred on or before Closing to the extent that such
liability to Tax is not fully recovered from or indemnified by Vivendi
under the Vivendi Sale Agreement, but excluding any liability to the
extent that it has been settled between the parties or their
respective Affiliates in accordance with the Framework and
Implementation Agreement, Schedule 9 or otherwise (whether before, on
or after the date of this Agreement);
INDEPENDENT EXPERT: has the meaning set out in Clause 28.3;
INTELLECTUAL PROPERTY: means patents, trade marks, brand names,
corporate names, trade names, domain names, logos, trade dress and
service marks, together with the goodwill of the business appurtenant
thereto, copyrights, designs, inventions, database rights, trade
secrets and know-how, formulae and processes, in each case, whether
registered or unregistered and any registrations and applications for
registrations thereof, and any other rights of a similar nature;
INTELLECTUAL PROPERTY ASSETS: means all Intellectual Property included
in the Acquired Assets;
INTEREST DETERMINATION DATE: means, in relation to each default, the
day upon which default interest commences under Clause 11.5 and the
same day of each month thereafter;
INVESTMENT CANADA UNDERTAKINGS: means:
(i) the Investment Canada Undertaking, as that term is defined
in the Vivendi Sale Agreement; and
(ii) the undertakings given in accordance with the letter dated
24 October 2001 from Diageo and addressed to the minister
responsible for the Investment Canada Acts; and
4
(iii) the undertakings given in accordance with the letter dated
13 December 2001 from Diageo and Pernod Ricard and addressed
to the minister responsible for the Investment Canada Acts;
JES: means Joseph E. Seagram & Sons, Inc. (now amalgamated with and
continued as Diageo North America, Inc.);
JOINT ASSETS: means any amounts refunded to or recovered by Diageo or
Pernod Ricard or any of their respective Affiliates in respect of a
liability which is a Joint Liability, PROVIDED THAT Joint Assets do
not include any amounts which have been settled between the parties or
their respective Affiliates in accordance with the Framework and
Implementation Agreement, Schedule 9 or otherwise (whether before, on
or after the date of this Agreement) or any amounts refunded to or
recovered by any Jointly-owned Entity;
JOINT LIABILITIES: means each liability of Diageo, Pernod Ricard or
any of their respective Affiliates, or any Jointly-owned Entity which
has been agreed by the parties, directly or indirectly, to be shared
by Diageo and Pernod Ricard in the Diageo Proportion and the Pernod
Ricard Proportion respectively or which is expressed in this Agreement
to be a Joint Liability,
PROVIDED THAT Joint Liabilities do not include:-
(i) Shared Liabilities; or
(ii) any liability to the extent that it has been settled between
the parties or their respective Affiliates either in
accordance with Schedule 9 or otherwise (whether before, on
or after the date of this Agreement);
JOINTLY-OWNED ENTITY: means those persons listed in Schedule 6
together with any other person which is, or was at the relevant time,
owned (directly or indirectly) by both Diageo and Pernod Ricard;
LEGAL EXPERT: has the meaning given in Clause 7.1.2;
MANAGING PARTY: means, in relation to a Jointly-owned Entity, the
party whose name is set out against the name of such entity in
Schedule 6;
MARGARITAVILLE LIABILITIES: has the meaning given in Clause 6.7.2;
MARKET PLAN: means the market plan in Agreed Form, as amended from
time to time pursuant to Clause 15.1.1;
MARKET PLAN IMPLEMENTATION COSTS: means all costs associated with the
implementation of the Market Plan which:
(i) are dissolution, liquidation or winding-up costs; or
(ii) are costs or liabilities associated with any Assurances
given to liquidators or similar officials and/or creditors
of any Jointly-owned Entities; or
(iii) have been agreed by the parties to be shared by Diageo and
Pernod Ricard in the Diageo Proportion and the Pernod Ricard
Proportion,
5
PROVIDED THAT Market Plan Implementation Costs shall not include any
liabilities to Tax;
MARTELL ASSETS: means the Pernod Ricard Assets set out below:
(i) the following Brands: CORDON ARGENT, CORDON BLEU, CORDON
RUBIS, CORDON SUPREME, DE VALCOURT, JULES ROBIN, L'OR,
MARTELL, MARTELL & CO., MARTELL CORDON BLEU, MEDAILLON,
NOBLIGE and ROBIN;
(ii) all vineyards, production facilities and warehouses
primarily associated with Martell; and
(iii) any other asset which relates wholly to any of the assets
set out in (i) or (ii) above;
NON-CONDUCTING PARTY: means, in relation to any Third Party
Proceedings, the party to this Agreement who does not have conduct of
the proceedings or the relevant part thereof;
PAYMENT DATE: has the meaning given in Clause 11.2.1;
PERNOD RICARD ASSETS: means those assets described in Clause 3 as
being owned by Pernod Ricard and/or its Affiliates;
PERNOD RICARD LIABILITIES: means, save as expressly provided otherwise
in this Agreement and subject to Clauses 5.1.2 to 5.1.5, each
liability, whenever incurred, which solely or principally relates to
Pernod Ricard Assets together with those other liabilities as are
expressed in this Agreement to be Pernod Ricard Liabilities PROVIDED
THAT Pernod Ricard Liabilities do not include:-
(i) Historic Tax Liabilities;
(ii) Shared Tax Costs; and
(iii) any liability to the extent that it has been settled between
the parties or their respective Affiliates in accordance
with the Framework and Implementation Agreement, Schedule 9
or otherwise (whether before, on or after the date of this
Agreement);
PERNOD RICARD ON-SALE ASSETS: means the Brands, other Acquired Assets
and companies sold or contracted to be sold pursuant to the
transactions described in Part B of Schedule 7;
PERNOD RICARD PROPORTION: means 39.1 per cent.;
PRIMARY PURCHASERS: means Diageo, acting as trustee for certain of its
Affiliates, and Pernod Ricard;
REVENUE AUTHORITY: means any domestic, foreign, federal, national,
state, provincial, county or municipal or other local government
authority (or any sub-division or agency of the same) having
responsibility for administering and collecting taxes;
SEAGRAM: means The Seagram Company Ltd, a Canadian corporation;
6
SEAGRAM VENTURE ASSETS: means the Brands, other Acquired Assets and
companies sold or contracted to be sold pursuant to the transactions
described in Part A of Schedule 7, dissolved, liquidated or wound up
or to be dissolved, liquidated or wound up pursuant to the Market Plan
or to be sold pursuant to Schedule 10.
SETTLEMENT PERIOD: means the period from the date of this Agreement to
31 December 2002 and thereafter each subsequent period of three
calendar months;
SHARED ASSETS: means any amounts refunded to or recovered by Diageo,
Pernod Ricard or any of their respective Affiliates or any
Jointly-owned Entity in respect of a liability which is a Shared
Liability, PROVIDED THAT Shared Assets do not include:-
(i) any amount to the extent that it has been settled between
the parties or their respective Affiliates in accordance
with the Framework and Implementation Agreement, Schedule 9
or otherwise (whether before, on or after the date of this
Agreement); or
(ii) any asset in or received by a Jointly-owned Entity or which
relates to Seagram Venture Assets (as defined in the
Framework and Implementation Agreement and not as defined in
this Clause 1.1) or Pernod Ricard On-sale Assets (as defined
in the Framework and Implementation Agreement and not as
defined in this Clause 1.1), in each case representing
operating revenue received in the ordinary course of
business or the proceeds of disposal of any asset;
SHARED LIABILITIES: means:
(i) each liability that is borne pursuant to the Vivendi Sale
Agreement by both Diageo and Pernod Ricard (excluding the
purchase price under that agreement and any adjustments
thereto); and
(ii) each liability which is an Historic Liability (but which is
not a Diageo Liability or a Pernod Ricard Liability), an
Historic Tax Liability, a Shared Tax Cost, a Market Plan
Implementation Cost, any liability which is expressed in
this Agreement to be a Shared Liability (including, without
limitation, pursuant to Clause 6.7.1 or Clause 9.2.3) or
which would have been a "Shared Liability" under the
Framework and Implementation Agreement (if such agreement
had remained in existence but had been amended to reflect
any inconsistent provision of this Agreement); and
(iii) each liability of Diageo, Pernod Ricard or any of their
respective Affiliates, or of any Jointly-owned Entity, which
the parties have agreed prior to the date of this Agreement
to treat as a "Shared Liability" for the purposes of the
Framework and Implementation Agreement; and
(iv) each liability of Diageo, Pernod Ricard or any of their
respective Affiliates, or of any Jointly-owned Entity, which
relates to any of those matters set out in Schedule 4,
PROVIDED THAT Shared Liabilities do not include:-
(i) any liability incurred by a Jointly-owned Entity or with
respect to Seagram Venture Assets (as defined in the
Framework and Implementation Agreement
7
and not as defined in this Clause 1.1) or Pernod Ricard
On-sale Assets (as defined in the Framework and
Implementation Agreement and not as defined in this Clause
1.1) that in either case is an operational or disposal cost.
For example, Shared Tax Costs arising on the disposal of
Seagram Venture Assets or Pernod Ricard On-sale Assets are
disposal costs and are not, therefore, Shared Liabilities;
or
(ii) any liability to the extent that it has been settled between
the parties or their respective Affiliates in accordance
with the Framework and Implementation Agreement, Schedule 9
or otherwise (whether before, on or after the date of this
Agreement), and
PROVIDED FURTHER THAT a liability shall be counted only once as a
Shared Liability if it falls into more than one part of the definition
of Shared Liabilities;
SHARED TAX COST: subject to the provisions of paragraphs 4, 6 and 10
of Schedule 5, means the sum of:-
(i) all Taxes payable by Diageo and/or Pernod Ricard and/or any
Affiliate of either of them and/or any Jointly-owned Entity
in respect of, and directly as a consequence of, the
transactions referred to in clause 9 of the Framework and
Implementation Agreement;
(ii) all Taxes payable by Diageo and/or Pernod Ricard and/or any
Affiliate of either of them and/or any Jointly-owned Entity
in respect of, and directly as a consequence of, each step
included in the Tax Plan;
(iii) sales taxes (but not customs and excise duties) payable in
respect of, and directly as a consequence of, the matters
taken into account in (i) and (ii);
(iv) all stamp duties, transfer taxes, registration duties and
other like taxes arising as a direct consequence of the
acquisition of the Acquired Assets acquired directly or
indirectly from Vivendi pursuant to the Vivendi Sale
Agreement;
(v) any out-of-pocket costs and expenses reasonably incurred in
resolving any tax dispute in relation to Taxes falling
within paragraphs (i) to (iv) or paragraph (vi) of this
definition; and
(vi) all Taxes payable directly as a consequence of all other
transactions required to put into effect the FIA
Implementation Principles and achieve the acquisition and
separation of the Acquired Assets and the disposition of the
Pernod Ricard On-sale Assets (as defined in the Framework
and Implementation Agreement and not in this Clause 1.1) and
Seagram Venture Assets (as defined in the Framework and
Implementation Agreement and not in this Clause 1.1);
SHARING PROPORTION: means, as regards Diageo, 68.6% and as regards
Pernod Ricard, 31.4%;
SOFIA IMPLEMENTATION PRINCIPLES: means the implementation principles
set out in Schedule 12;
SPIRITS AND WINE DIVISION: has the meaning given in recital A;
SPLIT CLAIM NOTICE: has the meaning given to it in Clause 5.2.5;
8
SUPERVISORY COMMITTEE: has the meaning given in Clause 27;
TAX OR TAXES: means all forms of taxes, imposts, duties, levies,
charges or withholdings (whether local or national) including, without
limitation, customs and excise duties, together with any interest or
penalties relating to any of them;
TAX ASSET: means a tax loss or other deduction or tax credit that can,
in either case, be applied against or used to reduce a tax liability;
TAX PLAN: means the tax plan in Agreed Form, being part of the Market
Plan, as amended from time to time pursuant to Schedule 5;
THIRD PARTY CLAIM: has the meaning given in Clause 6.5;
THIRD PARTY PROCEEDINGS: means any claim, demand, action or other
proceedings which are threatened, made or instituted by any person
other than Diageo or Pernod Ricard or any of their respective
Affiliates or any Jointly-owned Entity;
US$ LIBOR: means the LIBOR rate for deposits in U.S. Dollars for a
period of one month as shown on BBA's fixing Telerate Page 3770 (or if
such source does not exist or is not available at the relevant time
the equivalent rate set out in the Financial Times (London edition) on
the Interest Determination Date) as at close of business in London, on
the day that is two Business Days preceding the Interest Determination
Date;
VIVENDI: means Vivendi Universal S.A.;
VIVENDI SALE AGREEMENT: means the agreement dated as of 19th December,
2000 between Vivendi, Pernod Ricard and Diageo relating to the sale of
the businesses and assets of the Spirits and Wine Division, as amended
from time to time; and
WORKING HOURS: means 9.30 a.m. to 5.30 p.m. on a Business Day.
2.2 In this Agreement, unless otherwise specified:
2.2.1 references to Clauses and Schedules are to Clauses of, and Schedules
to, this Agreement;
2.2.2 use of any gender includes the other gender;
2.2.3 references to a "person" or "entity" shall be construed so as to
include any individual, firm, company or other body corporate,
government, state or agency of a state, local or municipal authority
or government body or any joint venture, association or partnership
(whether or not having separate legal personality);
2.2.4 a reference to any statute or statutory provision shall be construed
as a reference to the same as it may have been, or may from time to
time be, amended, modified or re-enacted;
2.2.5 any reference to a "day" (including within the phrase "Business Day")
shall mean a period of 24 hours running from midnight to midnight;
2.2.6 references to times are to London times;
9
2.2.7 references to "indemnifying" any person against any circumstance
include indemnifying and keeping him harmless from all actions, claims
and proceedings from time to time made against him and all loss,
damage, payments, costs or expenses suffered made or incurred by him
as a consequence of that circumstance, and the terms "indemnify" and
"indemnified" shall be construed accordingly;
2.2.8 a reference to any other document referred to in this Agreement is a
reference to that other document as amended, varied, novated or
supplemented (other than in breach of the provisions of this
Agreement) at any time;
2.2.9 headings and titles are for convenience only and do not affect the
interpretation of this Agreement;
2.2.10 the terms "subsidiary" and "holding company" shall have the meanings
given in the Companies Act 1985;
2.2.11 a reference to any English legal term for any action, remedy, method
of judicial proceeding, legal document, legal status, court, official
or any legal concept or thing shall in respect of any jurisdiction
other than England be treated as a reference to any analogous term in
that jurisdiction;
2.2.12 the rule known as the ejusdem generis rule shall not apply and
accordingly general words introduced by the word "other" shall not be
given a restrictive meaning by reason of the fact that they are
preceded by words indicating a particular class of acts, matters or
things; and
2.2.13 general words shall not be given a restrictive meaning by reason of
the fact that they are followed by particular examples intended to be
embraced by the general words.
2.3 The Schedules form part of this Agreement and shall have the same
force and effect as if expressly set out in the body of this
Agreement, and any reference to this Agreement shall include the
Schedules.
WARRANTIES AND UNDERTAKINGS
2.4 Each of the parties to this Agreement warrants to the other party as
follows:
2.4.1 it has the requisite power and authority to enter into and perform its
obligations under this Agreement;
2.4.2 this Agreement constitutes binding obligations on it in accordance
with its terms;
2.4.3 the execution and delivery of, and the performance by it of its
obligations under, this Agreement will not:
2.4.3.1 result in a breach of any provision of its memorandum or
articles of association or like constitutional documents; or
2.4.3.2 result in a breach of, or constitute a default under, any
instrument to which it or any of its Affiliates is a party
or by which it or any of its Affiliates is bound; or
10
2.4.3.3 result in a breach of any order, judgment or decree of any
court or governmental agency to which it or any of its
Affiliates is a party or by which it or any of its
Affiliates is bound; or
2.4.3.4 require the consent of its shareholders or of any other
person.
SEAGRAM COMPANIES AND ASSETS
2.5 Subject to the provisions of Clause 3.2, the parties acknowledge that,
as between themselves, ownership of the Acquired Assets, other than
those Acquired Assets either sold pursuant to the transactions
described in Schedule 7 or sold in the ordinary course of trading, is
divided between them (or their respective Affiliates) as set out in
Schedules 1, 2 and 3 such that the Acquired Assets described or listed
in Part A of any of Schedules 1, 2 or 3 are owned by Diageo and/or its
Affiliates and the Acquired Assets described or listed in Part B of
any of Schedules 1, 2 or 3 are owned by Pernod Ricard and/or its
Affiliates.
2.6 To the extent that:
2.6.1 any of the assets which are Diageo Assets under Schedule 1 are also
listed or described as Pernod Ricard Assets under Schedule 2, such
assets shall be treated as being owned by Diageo (and/or its
Affiliates) and shall be Diageo Assets for the purposes of this
Agreement; and
2.6.2 any of the assets which are Pernod Ricard Assets under Schedule 1 are
listed or described as Diageo Assets under Schedule 2, such assets
shall be treated as being owned by Pernod Ricard (and/or its
Affiliates) and shall be Pernod Ricard Assets for the purposes of this
Agreement.
2.7 The parties acknowledge that ownership of the shares and membership
interests in the bodies corporate listed in Schedule 3 is divided
between them (or their respective Affiliates) on the same basis as set
out in Schedule 3 such that the shares and other membership interests
in the bodies corporate listed in Part A of Schedule 3 are owned by
Diageo and/or its Affiliates and the shares and other membership
interests in the bodies corporate listed in Part B of Schedule 3 are
owned by Pernod Ricard and/or its Affiliates. Notwithstanding this and
for the avoidance of doubt, such bodies corporate shall not constitute
Diageo Assets or Pernod Ricard Assets for the purposes of this
Agreement.
2.8 The assets (other than After-acquired Assets) which are described as
Diageo Assets or Pernod Ricard Assets under Schedule 1 and/or Schedule
2 shall be treated for the purposes of this Agreement as having been
Diageo Assets or Pernod Ricard Assets (as the case may be) since
Closing.
2.9 Each After-acquired Asset which is described as a Diageo Asset or a
Pernod Ricard Asset under Schedule 1 or 2 shall be treated for the
purposes of this Agreement as having been a Diageo Asset or Pernod
Ricard Asset (as the case may be) with effect from the date (the
"Completion Date") set against it in Schedule 1 or 2.
2.10 The assets which are described as Diageo Assets or Pernod Ricard
Assets under Schedule 3 shall be treated for the purposes of this
Agreement as having been Diageo Assets or Pernod Ricard Assets with
effect from the date of this Agreement.
11
"WRONG POCKET" ASSETS, SHARED ASSETS AND JOINT ASSETS
2.11 TRANSFER OF WRONG POCKET ASSETS
2.11.1 If, within 12 months from the date of this Agreement or, in the case
of Intellectual Property Assets, at any time after the date of this
Agreement, it is found that any right, title or interest in any Diageo
Asset is held by Pernod Ricard or one of its Affiliates or a
Jointly-owned Entity, then, save where such person ("the transferor")
has acquired title to such asset after the date of this Agreement and
as a direct or indirect consequence of a sale for value by Diageo or
one of its Affiliates:
2.11.1.1 Pernod Ricard (or, where the transferor is a Jointly-owned
Entity, both Pernod Ricard and Diageo) shall transfer or
procure that the transferor shall as soon as practicable
transfer such right, title or interest in the relevant asset
to Diageo or its nominee for no consideration unless for
legal or other reasons it is reasonably necessary or
desirable to effect such transfer at fair market value or
other lower value, in which event Clause 4.2 shall apply;
2.11.1.2 Pernod Ricard (or, where the transferor is a Jointly-owned
Entity, both Pernod Ricard and Diageo) shall procure that
the transferor shall do all such further acts and things as
may be reasonably necessary to effect validly the transfer
and vest the asset or the relevant interest in Diageo (or
its nominee);
2.11.1.3 Pernod Ricard (or, where the transferor is a Jointly-owned
Entity, both Pernod Ricard and Diageo) shall procure that
the transferor shall hold the asset, or relevant interest in
the asset, on trust for Diageo (or its nominee) (to the
extent permitted by any relevant law) until such time as the
transfer is validly effected to vest the asset or relevant
interest in the asset in Diageo (or its nominee); and
2.11.1.4 Diageo (or, where the transferor is a Jointly-owned Entity,
both Pernod Ricard and Diageo) shall, or shall procure that
its nominee shall, make any payment required pursuant to
Clause 4.1.1.1, in cash, to the transferor (or its nominee)
promptly upon completion of the transfer of the relevant
asset or interest in the asset, and shall do, or shall
procure that its nominee shall do, all such further acts and
things as may be reasonably necessary to effect validly the
transfer and vest the asset or the relevant interest in the
asset in Diageo (or its nominee); and
2.11.1.5 in the case of any transfer of Intellectual Property Assets
under this Clause 4.1.1, Diageo or one of its Affiliates
shall be responsible for preparing and recording with the
relevant government entity or entities any documentation
relating to such transfer at its sole expense.
2.11.2 If, following the expiry of the 12 month period referred to in Clause
4.1.1, it is found that any right, title or interest in any Diageo
Assets (other than an Intellectual Property Asset) is held by Pernod
Ricard or one of its Affiliates or a Jointly-owned Entity, the
provisions of Clause 4.1.1 shall not apply and neither Pernod Ricard,
nor any of its Affiliates nor any Jointly-owned Entity shall have any
obligation to transfer any such right, title or interest to Diageo or
its nominee under such clause. For the
12
avoidance of doubt, the provisions of Clause 4.1.1 shall continue to
apply in relation to Intellectual Property Assets after the expiry of
such 12 month period.
2.11.3 If, within 12 months from the date of this Agreement or, in the case
of Intellectual Property Assets, any time after the date of this
Agreement, it is found that any right, title or interest in any Pernod
Ricard Asset is held by Diageo or one of its Affiliates or a
Jointly-owned Entity, then, save where such person ("the transferor")
has acquired title to such asset after the date of this Agreement and
as a direct or indirect consequence of a sale for value, otherwise
than in connection with this Agreement, by Pernod Ricard or one of its
Affiliates:
2.11.3.1 Diageo (or, where the transferor is a Jointly-owned Entity,
both Pernod Ricard and Diageo) shall transfer or procure
that the transferor shall as soon as practicable transfer
such right, title or interest in the relevant asset to
Pernod Ricard or its nominee for no consideration unless for
legal or other reasons it is reasonably necessary or
desirable to effect such transfer at fair market value or
other lower value, in which event Clause 4.2 shall apply;
2.11.3.2 Diageo (or, where the transferor is a Jointly-owned Entity,
both Diageo and Pernod Ricard) shall procure that the
transferor shall do all such further acts and things as may
be reasonably necessary to effect validly the transfer and
vest the asset or the relevant interest in Pernod Ricard (or
its nominee);
2.11.3.3 Diageo (or, where the transferor is a Jointly-owned Entity,
both Diageo and Pernod Ricard) shall procure that the
transferor shall hold the asset, or relevant interest in the
asset, on trust for Pernod Ricard (or its nominee) (to the
extent permitted by any relevant law) until such time as the
transfer is validly effected to vest the asset or relevant
interest in the asset in Pernod Ricard (or its nominee); and
2.11.3.4 Pernod Ricard (or, where the transferor is a Jointly-owned
Entity, both Diageo and Pernod Ricard) shall, or shall
procure that its nominee shall, make any payment required
pursuant to Clause 4.1.3.1, in cash, to the transferor (or
its nominee) promptly upon completion of the transfer of the
relevant asset or interest in the asset, and shall do, or
shall procure that its nominee shall do, all such further
acts and things as may be reasonably necessary to effect
validly the transfer and vest the asset or the relevant
interest in the asset in Pernod Ricard (or its nominee); and
2.11.3.5 in the case of any transfer of Intellectual Property Assets
under this Clause 4.1.3, Pernod Ricard or one of its
Affiliates shall be responsible for preparing and recording
with the relevant government entity or entities any
documentation relating to such transfer at its sole expense.
2.11.4 If, following the expiry of the 12 month period referred to in Clause
4.1.3, it is found that any right, title or interest in any Pernod
Ricard Asset (other than an Intellectual Property Asset) is held by
Diageo or one of its Affiliates or a Jointly-owned Entity, the
provisions of Clause 4.1.3 shall not apply and neither Diageo, any of
its Affiliates or any Jointly-owned Entity shall have any obligation
to transfer any such right, title or interest to Pernod Ricard or its
nominee under such clause. For the avoidance of
13
doubt, the provisions of Clause 4.1.3 shall apply in relation to
Intellectual Property Assets after the expiry of such 12 month period.
2.12 COMPENSATORY PAYMENT FOR WRONG POCKET ASSETS
2.12.1 Where Diageo or any of its Affiliates receives any payment pursuant to
Clause 4.1.3, Diageo shall (on behalf of itself and/or its
Affiliates), pay to Pernod Ricard an amount equal to the amount of
such payment.
2.12.2 Where Pernod Ricard or any of its Affiliates receives any payment
pursuant to Clause 4.1.1, Pernod Ricard shall (on behalf of itself
and/or its Affiliates), pay to Diageo an amount equal to the amount of
such payment.
2.12.3 Where a Jointly-owned Entity receives any payment:
2.12.3.1 from Diageo or any of its Affiliates pursuant to Clause
4.1.1; or
2.12.3.2 from Pernod Ricard or any of its Affiliates pursuant to
Clause 4.1.3,
(in the case of Clause 4.2.3.1) Pernod Ricard shall pay to Diageo (on
behalf of itself and/or its Affiliates) an amount equal to the Pernod
Ricard Proportion of the amount so received or (in the case of Clause
4.2.3.2) Diageo (on behalf of itself and/or its Affiliates) shall pay
to Pernod Ricard an amount equal to the Diageo Proportion of the
amount so received.
2.12.4 Payments to be made pursuant to this Clause 4.2 shall be made in
accordance with Clause 11.
2.13 SHARED ASSETS
2.13.1 Where, on or after Closing, either Primary Purchaser or any of its
Affiliates or any Jointly-owned Entity receives an amount of cash in
respect of any Shared Asset:
2.13.1.1 (in the case of any such cash received by a Primary
Purchaser or any of its Affiliates) that Primary Purchaser
shall pay to the other Primary Purchaser an amount equal to
that other Primary Purchaser's Sharing Proportion of such
amount; and
4.3.1.2 (in the case of any such cash received by a Jointly-owned
Entity) Diageo shall pay to Pernod Ricard an amount equal to
Pernod Ricard's Sharing Proportion of the Diageo Proportion
of such amount and Pernod Ricard shall pay to Diageo an
amount equal to Diageo's Sharing Proportion of the Pernod
Ricard Proportion of such amount.
2.13.2 For the purposes of Clause 4.3.1.2 above, each of Diageo and Pernod
Ricard shall act as Primary Purchasers.
2.13.3 For the purposes of Clause 4.3.1 above, amounts received in respect of
a Shared Asset by the purchaser or receiving entity under an FIA
Identified Sale and Purchase Agreement to which JES is a party shall
be treated as if received by JES.
2.13.4 Payments to be made pursuant to this Clause 4.3 shall be made in
accordance with Clause 11.
14
2.14 JOINT ASSETS
2.14.1 Where, on or after Closing, Diageo or any of its Affiliates receives
an amount of cash in respect of any Joint Asset it shall pay to Pernod
Ricard an amount equal to the Pernod Ricard Proportion of the amount
so received.
2.14.2 Where, on or after Closing, Pernod Ricard or any of its Affiliates
receives an amount of cash in respect of any Joint Asset it shall pay
to Diageo an amount equal to the Diageo Proportion of the amount so
received.
2.14.3 Payments to be made pursuant to this Clause 4.4 shall be made in
accordance with Clause 11.
DIAGEO AND PERNOD RICARD LIABILITIES
2.15 DIAGEO AND PERNOD RICARD LIABILITIES
2.15.1 Diageo Liabilities shall be borne wholly by Diageo and Pernod Ricard
Liabilities shall be borne wholly by Pernod Ricard.
2.15.2 LIABILITIES RELATING TO SCHEDULE 3 ASSETS
In accordance with Clause 3.6, the Acquired Assets described in Parts
A and B of Schedule 3 (the "Schedule 3 Assets") will be treated as
Diageo Assets and Pernod Ricard Assets, respectively, with effect from
the date of this Agreement. Liabilities relating to the Schedule 3
Assets and which relate to an event or circumstance first occurring or
existing on or prior to the date of this Agreement shall not be Diageo
Liabilities or Pernod Ricard Liabilities. Such liabilities shall be
Joint Liabilities or Shared Liabilities (as the case may be), save to
the extent that such liabilities have been settled between the parties
or their respective Affiliates in accordance with the Framework and
Implementation Agreement, Schedule 9 or otherwise (whether before, on
or after the date of this Agreement). Clause 5.1.5 shall also apply to
liabilities relating to the Schedule 3 Assets which might otherwise be
Diageo Liabilities or Pernod Ricard Liabilities.
2.15.3 LIABILITIES OF SCHEDULE 3 COMPANIES
Subject to Clause 5.1.2, all liabilities of the bodies corporate
listed in Schedule 3 which do not relate solely or principally to the
assets described in Schedules 1, 2 or 3 (the "Corporate Liabilities")
but which relate to an event or circumstance first occurring or
existing on or prior to Closing shall not be Diageo Liabilities or
Pernod Ricard Liabilities but shall be Joint Liabilities or Shared
Liabilities (as the case may be), save to the extent that such
liabilities have been settled between the parties or their respective
Affiliates in accordance with the Framework and Implementation
Agreement, Schedule 9 or otherwise (whether before, on or after the
date of this Agreement).
Those Corporate Liabilities (other than Historic Tax Liabilities and
Shared Tax Costs) which relate to an event or circumstance occurring
or existing after Closing shall (subject to Clause 5.1.5) be Diageo
Liabilities (in the case of Corporate Liabilities of the bodies
corporate listed in Part A of Schedule 3) and Pernod Ricard
Liabilities (in the case of Corporate Liabilities of the bodies
corporate listed in Part B of Schedule 3), save in each case to the
extent that such liabilities have been settled by the parties or their
respective Affiliates in accordance with the Framework and
15
Implementation Agreement, Schedule 9 or otherwise (whether before, on
or after the date of this Agreement).
2.15.4 AFTER-ACQUIRED ASSETS
Liabilities relating solely or principally to an After-acquired Asset
shall not be treated as Diageo Liabilities or Pernod Ricard
Liabilities (as the case may be) to the extent that they arise out of
any event or circumstance first occurring or existing on or prior to
the Completion Date relating to such After-acquired Asset. Clause
5.1.5 shall also apply to liabilities relating to Acquired Assets
which might otherwise be Diageo Liabilities or Pernod Ricard
Liabilities.
2.15.5 In circumstances where a Corporate Liability or a liability relating
to an Acquired Asset (in each case, other than a liability to Tax)
arises out of events or circumstances first occurring or existing on
or prior to the Relevant Date (as defined below), but such liability
continues to arise or increases as a consequence of the continuation
or repetition of such events or circumstances after such Relevant
Date, then such liability as relates to the period after the Relevant
Date shall be treated in the same way as if it had occurred or existed
on or prior to the Relevant Date for the purposes of determining
whether such liability is a Shared Liability, Joint Liability, Diageo
Liability or Pernod Ricard Liability, subject always to Clause 20.4.
In this Clause 5.1.5, "Relevant Date" means:
2.15.5.1 (in the case of the Schedule 3 Assets) the date of this
Agreement;
2.15.5.2 (in the case of an After-acquired Asset) the Completion Date
of such asset; and
2.15.5.3 (in the case of the Acquired Assets described in Schedules 1
and 2, other than the After-acquired Assets) Closing; and
2.15.5.4 (in the case of the Corporate Liabilities) Closing.
2.16 WRONG POCKET LIABILITIES
2.16.1 Upon Diageo becoming aware of any Third Party Proceedings against it
or any of its Affiliates or any Jointly-owned Entity in respect of
which Diageo is the Managing Party which relate solely to a Pernod
Ricard Liability, or which solely give rise to a Pernod Ricard
Liability, Diageo shall:-
2.16.1.1 as soon as reasonably practicable (and in any event prior to
making any admission of liability, agreement, settlement,
payment or compromise with or to any third party in relation
to such Third Party Proceedings), notify Pernod Ricard in
writing, such notice (so far as reasonably practicable at
that time) to contain reasonable details regarding the Third
Party Proceedings;
2.16.1.2 take (or, as appropriate, procure that its Affiliates or, to
the extent within its control, any relevant Jointly-owned
Entities take) such action and give such information and
assistance as Pernod Ricard may reasonably request in order
to avoid, dispute, resist, mitigate, settle, compromise or
defend the Third Party Proceedings PROVIDED THAT Pernod
Ricard shall indemnify Diageo (for itself and on behalf of
its Affiliates) and/or each relevant Jointly-owned Entity
(as the case may be) against any liability, cost, damage or
16
expense which may be incurred thereby by Diageo and/or any
of its Affiliates and/or any such Jointly-owned Entity;
2.16.1.3 at the request of Pernod Ricard, allow Pernod Ricard to take
the sole conduct of the Third Party Proceedings PROVIDED
THAT Pernod Richard shall indemnify Diageo (for itself and
on behalf of its Affiliates) and/or each relevant
Jointly-owned Entity against any liability, cost, damage or
expense which may be incurred thereby by Diageo and/or its
Affiliates or any relevant Jointly-owned Entity AND PROVIDED
FURTHER THAT Diageo and/or its Affiliates and/or any such
Jointly-owned Entity shall be entitled to retain the sole
conduct of any such Third Party Proceedings which, in
Diageo's reasonable view, could be materially detrimental to
the business of Diageo or any Affiliate or any such
Jointly-owned Entity, as the case may be;
2.16.1.4 make (or, as appropriate, procure that its Affiliates or, to
the extent within its control, any Jointly-owned Entities
make) no admission of liability, agreement, settlement,
payment or compromise with or to any third party in relation
to any such Third Party Proceedings without the prior
consent of Pernod Ricard, which shall not be unreasonably
withheld or delayed, PROVIDED THAT Diageo and/or each of its
relevant Affiliates and/or each relevant Jointly-owned
Entity shall be entitled in Diageo's sole discretion (i) to
make such an admission, agreement, settlement or compromise
in circumstances where Pernod Ricard has not requested to
take conduct of the relevant Third Party Proceedings
pursuant to Clause 5.2.1.3 above within 20 Business Days
following notification of such Third Party Proceedings to
Pernod Ricard being made pursuant to Clause 5.2.1.1 above;
and/or (ii) to make such an agreement, settlement or
compromise (but not an admission of liability) at its own
cost and expense and on the basis that neither it nor the
person(s) with whom such agreement, settlement or compromise
is made will have any recourse to Pernod Ricard or any of
its Affiliates or any Jointly-owned Entity in respect of the
subject matter of the relevant Third Party Proceedings;
and/or (iii) to discharge any award against it or them of
damages, costs or any other amount which is the subject of a
final, binding and non-appealable decision from a court or
arbitration panel of competent jurisdiction.
2.16.2 If either Pernod Ricard takes, or Diageo (or one of its Affiliates) or
any relevant Jointly-owned Entity in respect of which Diageo is the
Managing Party retains, sole conduct of any Third Party Proceedings
pursuant to Clause 5.2.1.3 above, it shall do so at its own cost and
expense (but without prejudice to its rights to recover any amount
settled or paid under Clause 5.3) and shall provide the other party
with such information as such other party may reasonably require from
time to time regarding the progress of and developments in relation to
such Third Party Proceedings.
2.16.3 Upon Pernod Ricard becoming aware of any Third Party Proceedings
against it or any of its Affiliates or any Jointly-owned Entity in
respect of which Pernod Ricard is the Managing Party which relate
solely to a Diageo Liability, or which solely give rise to a Diageo
Liability, Pernod Ricard shall:-
2.16.3.1 as soon as reasonably practicable (and in any event prior to
making any admission of liability, agreement, settlement,
payment or
17
compromise with or to any third party in relation to any
such Third Party Proceedings), notify Diageo in writing,
such notice (so far as reasonably practicable at that time)
to contain reasonable details regarding the Third Party
Proceedings;
2.16.3.2 take (or, as appropriate, procure that its Affiliates or, to
the extent within its control, any relevant Jointly-owned
Entity take) such action and give such information and
assistance as Diageo may reasonably request in order to
avoid, dispute, resist, mitigate, settle, compromise or
defend the Third Party Proceedings PROVIDED THAT Diageo
shall indemnify Pernod Ricard (for itself and on behalf of
its Affiliates) and/or each relevant Jointly-owned Entity
(as the case may be) against any liability, cost, damage or
expense which may be incurred thereby by Pernod Ricard
and/or any of its Affiliates and/or any such Jointly-owned
Entity;
2.16.3.3 at the request of Diageo, allow Diageo to take the sole
conduct of the Third Party Proceedings PROVIDED THAT Diageo
shall indemnify Pernod Ricard (for itself and on behalf of
its Affiliates) and/or each relevant Jointly-owned Entity
against any liability, cost, damage or expense which may be
incurred thereby by Pernod Ricard and/or its Affiliates or
any relevant Jointly-owned Entity AND PROVIDED FURTHER THAT
Pernod Ricard and/or its Affiliates and/or any such
Jointly-owned Entity shall be entitled to retain the sole
conduct of any such Third Party Proceedings which, in Pernod
Ricard's reasonable view, could be materially detrimental to
the business of Pernod Ricard or any such Affiliate or any
such Jointly-owned Entity, as the case may be;
2.16.3.4 make (or, as appropriate, procure that its Affiliates or, to
the extent within its control, any Jointly-owned Entities
make) no admission of liability, agreement, settlement or
compromise with or to any third party in relation to any
such Third Party Proceedings without the prior consent of
Diageo, which shall not be unreasonably withheld or delayed,
PROVIDED THAT Pernod Ricard and/or each of its relevant
Affiliates and/or each relevant Jointly-owned Entity shall
be entitled in Pernod Ricard's sole discretion (i) to make
such an admission, agreement, settlement or compromise in
circumstances where Diageo has not requested to take conduct
of the relevant Third Party Proceedings pursuant to Clause
5.2.3.3 above within 20 Business Days following notification
of such Third Party Proceedings to Diageo being made
pursuant to Clause 5.2.3.1 above; and/or (ii) to make such
an agreement, settlement or compromise (but not an admission
of liability) at its own cost and expense and on the basis
that neither it nor the person(s) with whom such admission,
agreement, settlement or compromise is made will have any
recourse to Diageo or any of its Affiliates or any
Jointly-owned Entity in respect of the subject matter of the
relevant Third Party Proceedings; and/or (iii) to discharge
any award against it or them of damages, costs or any other
amount which is the subject of a final, binding and
non-appealable decision from a court or arbitration panel of
competent jurisdiction.
2.16.4 If either Diageo takes, or Pernod Ricard (or one of its Affiliates) or
any relevant Jointly-owned Entity in respect of which Pernod Ricard is
the Managing Party
18
retains, sole conduct of any Third Party Proceedings pursuant to
Clause 5.2.3.3 above, it shall do so at its own cost and expense (but
without prejudice to its rights to recover any amount settled or paid
under Clause 5.3) and shall provide the other party with such
information as such other party may reasonably require from time to
time regarding the progress of and developments in relation to such
Third Party Proceedings.
2.16.5 Upon either party (the "Notifying Party") becoming aware of any Third
Party Proceedings against it or any of its Affiliates, or any
Jointly-owned Entity in respect of which it is the Managing Party, in
relation to, or which may give rise to, two or more of (i) a Diageo
Liability, (ii) a Pernod Ricard Liability and/or (iii) a Shared
Liability and/or Joint Liability, it shall as soon as reasonably
practicable give notice (a "Split Claim Notice") to the other party
(the "Notified Party") in accordance with Clause 5.2.7. For the
avoidance of doubt, Clauses 5.2.1 and 5.2.3 shall not apply to any
such Third Party Proceedings.
2.16.6 Subject to Clause 5.2.9, following service of a Split Claim Notice
under Clause 5.2.5:-
2.16.6.1 Diageo shall have conduct (at its own cost and expense) of
the relevant Third Party Proceedings insofar as they relate
to the Diageo Liability, Pernod Ricard shall have conduct
(at its own cost and expense) of such proceedings insofar as
they relate to the Pernod Ricard Liability (and Diageo shall
be the Conducting Party in relation to such proceedings
insofar as they relate to the Diageo Liability and Pernod
Ricard shall be the Conducting Party in relation to such
proceedings insofar as they relate to the Pernod Ricard
Liability) and the provisions of Clause 6 shall apply to the
relevant Third Party Proceedings insofar as they relate to a
Shared Liability and/or Joint Liability;
2.16.6.2 the parties shall take such procedural steps as may be
necessary in the relevant jurisdiction to facilitate conduct
of the Third Party Proceedings by both of them in the manner
contemplated by Clause 5.2.8.1, and shall otherwise
co-operate with one another in good faith in relation to
such conduct;
2.16.6.3 the Conducting Party shall keep the Non-Conducting Party
promptly informed of all material developments regarding the
Third Party Proceedings (or the relevant part thereof) and
provide the Non-Conducting Party with such information as it
may reasonably request from time to time regarding the Third
Party Proceedings (or the relevant part thereof), save where
to provide such information would result in the loss of
legal privilege in that information or might result in a
breach of any applicable anti-trust or competition law, in
which case (to the extent possible) disclosure shall be on
an external counsel basis or to an independent third party
who shall undertake not to disclose privileged or anti-trust
sensitive information received to the Non-Conducting Party;
2.16.6.4 the Conducting Party shall, where reasonably practicable,
consult the Non-Conducting Party and have reasonable regard
to the interests of the Non-Conducting Party and its
Affiliates before taking any significant step in relation to
the Third Party Proceedings (or the relevant part thereof);
19
2.16.6.5 the Non-Conducting Party shall take (or, as appropriate,
procure that its Affiliates or any Jointly-owned Entity in
respect of which it is the Managing Party take) such action
and give such information and assistance as the Conducting
Party may reasonably request in order to avoid, dispute,
resist, mitigate, settle, compromise or defend the Third
Party Proceedings (to the extent such proceedings relate to
a liability of the Conducting Party) PROVIDED THAT the
Conducting Party shall indemnify the Non-Conducting Party
(for itself and on behalf of its Affiliates) and/or each
relevant Jointly-owned Entity (as the case may be) against
any liability, cost, damage or expense which may be incurred
thereby by the Non-Conducting Party and/or its Affiliates
and/or any such Jointly-owned Entity;
2.16.6.6 the Non-Conducting Party shall not make (and shall procure
that none of its Affiliates or any Jointly-owned Entity in
respect of which it is the Managing Party shall make) any
admission of liability, agreement, settlement or compromise
with any third party in relation to any such Third Party
Proceedings (insofar as such proceedings relate to the
liability of the Conducting Party) except (i) with the prior
consent of the Conducting Party, which shall not be
unreasonably withheld or delayed; or (ii) in order to
discharge any award of damages, costs or other amount which
is the subject of a final, binding and non-appealable
decision from a Court or arbitration panel of competent
jurisdiction; and
2.16.6.7 save as expressly provided in this Clause 5.2.6, any costs
or expenses incurred by the Non-Conducting Party or any of
its Affiliates in connection with the relevant Third Party
Proceedings (or relevant part thereof) shall be for the
account of such Non-Conducting Party.
2.16.7 Any Split Claim Notice given pursuant to Clause 5.2.5 shall be in
writing, shall identify itself as a Split Claim Notice for the
purposes of this Agreement and shall specify in reasonable detail:-
2.16.7.1 the party on whose behalf the notification is being made;
2.16.7.2 a description of the Third Party Proceedings to which the
notice relates; and
2.16.7.3 (insofar as it is reasonably practicable to do so at the
time of the Split Claim Notice) the expected currency and
the amount of the Diageo Liability and Pernod Ricard
Liability to which it relates.
2.16.8 The giving of a notice under Clause 5.2.1 or 5.2.3, or a Split Claim
Notice under Clause 5.2.5, shall be without prejudice to the
entitlement of the party giving the notice to give one or more
subsequent notices to the other party for the purposes of this
Agreement or for the purposes of making any such amendments to a
notice as it reasonably considers to be necessary or appropriate to
reflect further information in relation to the relevant Third Party
Proceedings. References under Clauses 5.2.1, 5.2.3 and 5.2.5 to a
notice or (as the case may be) to a Split Claim Notice shall be deemed
to include a reference to any such subsequent notice.
2.16.9 If, following service of a Split Claim Notice pursuant to Clause
5.2.5, the parties agree that one or the other of them (but not both
of them) should have sole conduct of
20
the relevant Third Party Proceedings, the parties shall agree the
basis on which such Third Party Proceedings shall be conducted.
2.17 PAYMENT OF PERNOD RICARD AND DIAGEO LIABILITIES
2.17.1 Subject to Clause 5.3.3 below and subject to proviso (ii) of Clause
5.2.3.4, where, on or after Closing, Pernod Ricard or any of its
Affiliates or any Jointly-owned Entity discharges any Diageo
Liability, or any part thereof then:
2.17.1.1 (in the case of any such liability, or part thereof,
discharged by Pernod Ricard or any of its Affiliates) Diageo
shall pay to Pernod Ricard an amount equal the amount so
discharged; and
2.17.1.2 (in the case of any such liability, or part thereof,
discharged by a Jointly-owned Entity) Diageo shall pay to
Pernod Ricard an amount equal to the Pernod Ricard
Proportion of the amount so discharged.
For the purposes of this Clause 5.3.1 and Clause 5.3.3, where Pernod
Ricard or any of its Affiliates or any Jointly-owned Entity incurs any
liability, cost, damage or expense which is the subject of an
indemnity from Diageo under Clause 5.2.3.2 or Clause 5.2.3.3, such
liability, cost, damage or expense shall (save as provided in Clause
5.2.2 or Clause 5.2.4) be treated as a Diageo Liability that has been
discharged by Pernod Ricard, one of its Affiliates or a Jointly-owned
Entity (as the case may be).
2.17.2 Subject to Clause 5.3.3 below and subject to proviso (ii) of Clause
5.2.1.4, where, on or after Closing, Diageo or any of its Affiliates
or any Jointly-owned Entity discharges any Pernod Ricard Liability, or
any part thereof then:
2.17.2.1 (in the case of any such liability, or part thereof,
discharged by Diageo or any of its Affiliates) Pernod Ricard
shall pay to Diageo an amount equal to the amount so
discharged; and
2.17.2.2 (in the case of any such liability, or part thereof,
discharged by a Jointly-owned Entity) Pernod Ricard shall
pay to Diageo an amount equal to the Diageo Proportion of
the amount so discharged.
For the purposes of this Clause 5.3.2 and Clause 5.3.3, where Diageo
or any of its Affiliates or any Jointly-owned Entity incurs any
liability, cost, damage or expense which is the subject of an
indemnity from Pernod Ricard under Clause 5.2.1.2 or Clause 5.2.1.3,
such liability, cost, damage or expense shall (save as provided in
Clause 5.2.2 or Clause 5.2.4) be treated as a Pernod Ricard Liability
that has been discharged by Diageo, one of its Affiliates or a
Jointly-owned Entity (as the case may be).
2.17.3 Diageo shall not be required to make any payment to Pernod Ricard
pursuant to Clause 5.3.1.1 and Pernod Ricard shall not be required to
make any payment to Diageo pursuant to Clause 5.3.2.1 in connection
with any liability (or series of connected liabilities relating to or
arising out of the same circumstances) unless, in each case, (i) the
amount of such payment would exceed US$10,000 (and, for the avoidance
of doubt, if the amount of such payment would exceed US$10,000 the
whole amount shall be payable and not just the excess) and (ii)
(without limitation of the provisions of Clauses 5.1 and 5.2) notice
in writing has been given to the other at least 7 Business Days prior
to the party giving the notice making any admission of liability,
agreement, settlement, payment or compromise with or to any third
party in
21
relation to the relevant Third Party Proceedings. The limitation set
out in this Clause 5.3.3 shall not apply in respect of:
2.17.3.1 payments to be made pursuant to Clauses 5.3.1.2 or 5.3.2.2
following discharge of a liability by a Jointly-owned
Entity; or
2.17.3.2 payments under the indemnities contained in Clauses 5.2.1.2,
5.2.1.3, 5.2.3.2 or 5.2.3.3.
2.17.4 Payments to be made pursuant to this Clause 5.3 shall be made in
accordance with Clause 11.
SHARED AND JOINT LIABILITIES
2.17.5 Upon either party (the "Notifying Party") becoming aware of any Third
Party Proceedings against it or any of its Affiliates in relation to,
or which may give rise to, a Shared Liability or a Joint Liability to
which Clause 6.3.4 applies, it shall as soon as reasonably practicable
(and in any event at least 7 Business Days prior to making any
admission of liability, agreement, settlement, payment or compromise
with or to any third party in relation to such Third Party
Proceedings) give notice (a "Claims Notice") to the other party (the
"Notified Party") in accordance with Clause 6.4. No Claims Notice
shall be given under this Clause 6.1 in respect of a Shared Liability
or a Joint Liability of the kind described in Clause 6.6 (Identified
Litigation) PROVIDED THAT this sub-clause shall apply for the purposes
of Third Party Proceedings in relation to Shared Tax Costs subject to
the provisions of paragraph 4 of Schedule 5.
2.17.6 When considering whether any Third Party Proceedings may give rise to
a Shared Liability or Joint Liability to which Clause 6.3.4 applies,
the Notifying Party's estimate of the out-of-pocket costs and expenses
to be incurred in connection with the defence or conduct of the
relevant Third Party Proceedings shall be treated as part of the value
of the liability for the purposes of the financial thresholds referred
to in such clauses.
2.18 CONDUCT OF CLAIMS
Following service of a Claims Notice under Clause 6.1:-
2.18.1 the Notifying Party shall have the sole conduct of the Third Party
Proceedings to which such notice relates unless (i) agreed otherwise
by the parties; or (ii) the circumstances giving rise to the Third
Party Proceedings (or any related circumstances giving rise to the
same cause of action) have previously been the subject of a Claims
Notice issued by the other party, in which case such other party shall
have conduct of all Third Party Proceedings relating to such
circumstances;
2.18.2 the Conducting Party shall keep the Non-Conducting Party promptly
informed of all material developments regarding the Third Party
Proceedings and provide the Non-Conducting Party with such information
as it may reasonably request from time to time regarding the Third
Party Proceedings, save where to provide such information would result
in the loss of legal privilege in that information or might result in
a breach of any applicable anti-trust or competition law, in which
case (to the extent possible) disclosure shall be on an external
counsel basis or to an independent third party who shall undertake not
to disclose privileged or anti-trust sensitive information received to
the Non-Conducting Party;
22
2.18.3 the Conducting Party shall, where reasonably practicable, consult the
Non-Conducting Party and have reasonable regard to the interests of
the Non-Conducting Party and its Affiliates before taking any
significant step in relation to the Third Party Proceedings;
2.18.4 the Non-Conducting Party shall take (or, as appropriate, procure that
its Affiliates or, to the extent within its control, any relevant
Jointly-owned Entities for which it is the Managing Party take) such
action and give such information and assistance as the Conducting
Party may reasonably request in order to avoid, dispute, resist,
mitigate, settle, compromise or defend the Third Party Proceedings;
2.18.5 neither party shall make (and each party shall procure that none of
its Affiliates and, to the extent within its control, no Jointly-owned
Entity shall make) any admission of liability, agreement, settlement
or compromise with any third party in relation to any such Third Party
Proceedings except (i) with the prior consent of the other party,
which shall not be unreasonably withheld or delayed; or (ii) in order
to discharge any award of damages, costs or other amount which is the
subject of a final, binding and non-appealable decision from a Court
or arbitration panel of competent jurisdiction; and
2.18.6 the Conducting Party shall conduct the relevant Third Party
Proceedings with reasonable diligence and competence.
The provisions of this Clause 6.2 shall have effect for the purposes
of Third Party Proceedings which relate to Shared Tax Cost subject to
the provisions of paragraph 4 of Schedule 5.
2.19 PAYMENT OF SHARED AND JOINT LIABILITIES
2.19.1 Where, on or after Closing, either Primary Purchaser or any of its
Affiliates or any Jointly-owned Entity discharges any Shared
Liability, or any part thereof, then:
2.19.1.1 (in the case of any such liability, or part thereof,
discharged by a Primary Purchaser or any of its Affiliates)
the other Primary Purchaser shall pay to that Primary
Purchaser an amount equal to that other Primary Purchaser's
Sharing Proportion of the amount so discharged; and
2.19.1.2 (in the case of any such liability, or part thereof,
discharged by a Jointly-owned Entity), Pernod Ricard shall
pay to Diageo (as a Primary Purchaser) an amount equal to
Pernod Ricard's Sharing Proportion of the Diageo Proportion
of the amount so discharged or incurred and Diageo (as a
Primary Purchaser) shall pay to Pernod Ricard an amount
equal to Diageo's Sharing Proportion of the Pernod Ricard
Proportion of the amount so discharged,
PROVIDED THAT (without limitation to the provisions of Clauses 6.1 and
6.2 and save in relation to a Shared Liability which is an Historic
Tax Liability, a Shared Tax Cost or which otherwise relates to Tax)
neither Diageo nor Pernod Ricard shall be required to make any payment
to the other pursuant to Clause 6.3.1.1 unless notice has been given
pursuant to Clause 6.1 at least 7 Business Days prior to the party
giving the notice making any admission of liability, agreement,
settlement, payment or compromise with or to any third party in
relation to the relevant Third Party Proceedings.
23
2.19.2 For the purposes of Clause 6.3.1 above, any Shared Liability, or part
thereof, discharged by the purchaser or receiving entity under a FIA
Identified Sale and Purchase Agreement to which JES is a party shall
be treated as if discharged by JES.
2.19.3 Where, on or after Closing:
2.19.3.1 Diageo or any of its Affiliates discharges any Joint
Liability, or any part thereof, which is not shared in the
Diageo Proportion and the Pernod Ricard Proportion
respectively independent of the operation of this Agreement,
then Pernod Ricard shall pay to Diageo (or its Affiliate(s)
as appropriate) an amount equal to the Pernod Ricard
Proportion of the amount so discharged; and
2.19.3.2 Pernod Ricard or any of its Affiliates discharges any Joint
Liability, or any part thereof, which is not shared in the
Diageo Proportion and the Pernod Ricard Proportion
respectively independent of the operation of this Agreement,
then Diageo shall pay to Pernod Ricard (or its Affiliate(s)
as appropriate) an amount equal to the Diageo Proportion of
the amount so discharged,
PROVIDED THAT (without limitation to the provisions of Clauses 6.1 and
6.2 and save in relation to a Joint Liability which is an Historic Tax
Liability, a Shared Tax Cost or which otherwise relates to Tax)
neither Diageo nor Pernod Ricard shall be required to make any payment
to the other pursuant to Clause 6.3.3.1 unless notice has been given
pursuant to Clause 6.1 at least 7 Business Days prior to the party
giving the notice making any admission of liability, agreement,
settlement, payment or compromise with or to any third party in
relation to the relevant Third Party Proceedings.
2.19.4 The provisions of Clause 6.3.1 to 6.3.4 shall only apply in respect of
any Shared Liability or Joint Liability, or any part thereof, which:-
2.19.4.1 (in the case of any such liability in respect of which a
Claims Notice is served pursuant to Clause 6.1 on or prior
to the first anniversary of this Agreement) exceeds
US$200,000 or which forms part of a series of connected
Joint Liabilities or Shared Liabilities (as appropriate)
relating to or arising out of the same circumstances which
in the aggregate exceed US$200,000; or
2.19.4.2 (in the case of any such liability in respect of which a
Claims Notice is served pursuant to Clause 6.1 after the
first anniversary of this Agreement) exceeds US$1,000,000 or
which forms part of a series of connected Joint Liabilities
or Shared Liabilities (as appropriate) relating to or
arising out of the same circumstances which in the aggregate
exceed US$1,000,000; or
2.19.4.3 relates to those matters referred to in Schedule 4; or
2.19.4.4 is a Market Plan Implementation Cost; or
2.19.4.5 is a Margaritaville Liability; or
2.19.4.6 is a liability which is a Joint Liability or a Shared
Liability pursuant to Clause 18.1.1; or
24
2.19.4.7 is a Historic Tax Liability, a Shared Tax Cost or otherwise
relates to Tax (including, without limitation, those matters
referred to in paragraph 4 of Schedule 5); or
2.19.4.8 is discharged by a Jointly-owned Entity.
For the avoidance of doubt, where Clause 6.3.4.1 or 6.3.4.2 applies
the provisions of this Clause 6 shall apply in their entirety to the
whole of any Shared Liability or Joint Liability which exceeds
US$200,000 or US$1 million (as the case may be) or which forms part of
a series of connected Joint Liabilities or Shared Liabilities (as
appropriate) relating to or arising out of the same circumstances
which in the aggregate exceed US$200,000 or US$1 million (as the case
may be) and not just to the excess over such amount.
2.19.5 Where either party or any of its Affiliates reasonably incurs any
out-of-pocket costs or expenses in connection with the defence or
conduct of any Third Party Proceedings in relation to, or which may
give rise to, a Shared Liability or a Joint Liability, such costs and
expenses shall be treated as forming part of and shall be aggregated
with the Shared Liability and/or Joint Liability to which they relate
for the purposes of this Clause 6.3. For the avoidance of doubt, such
costs and expenses shall not be subject to the notice provisions
contained in Clause 6.1 or the conduct of claims provisions contained
in Clause 6.2.
2.19.6 Payments to be made pursuant to this Clause 6.3 shall be made in
accordance with Clause 11.
2.20 CLAIMS NOTICES
2.20.1 Any Claims Notice given pursuant to Clause 6.1 shall be in writing,
shall identify itself as a Claims Notice for the purposes of this
Agreement and shall specify in reasonable detail:-
2.20.1.1 the party on whose behalf the notification is being made;
2.20.1.2 a description of the Third Party Proceedings to which the
notice relates; and
2.20.1.3 (insofar as it is reasonably practicable to do so at the
time of the Claims Notice) the expected currency and the
amount of the Shared Liability and/or Joint Liability to
which it relates.
2.20.2 The giving of a Claims Notice shall be without prejudice to the
entitlement of the party giving the notice to give one or more
subsequent notices (at any time, notwithstanding the provisions of
Clause 6.3.5) to the other party for the purposes of making any such
amendments to the Claims Notice as it reasonably considers to be
necessary or appropriate to reflect further information in relation to
the matters referred to in Clause 6.4.1. References to a Claims Notice
shall be deemed to include a reference to any such subsequent notice.
2.21 RECOVERY FROM THIRD PARTIES
2.21.1 Subject to Clause 6.5.3, if a party (a "Claiming Party") or one of its
Affiliates has or may have a claim against a third party (not being
Vivendi, one of the Claiming
25
Party's Affiliates, the other party or any of its Affiliates or any
Jointly-owned Entity) in respect of a Shared Liability and/or a Joint
Liability (a "Third Party Claim"), then:
2.21.1.1 the Claiming Party shall promptly notify the other party
(the "Non-Claiming Party") in writing of the Third Party
Claim;
2.21.1.2 the Claiming Party shall take, or procure that its
Affiliates take, all reasonable steps to enforce the Third
Party Claim save to the extent that such steps could, in the
Claiming Party's reasonable opinion, be materially
detrimental to its business or that of any of its
Affiliates;
2.21.1.3 any amount actually recovered by the Claiming Party (or any
of its Affiliates) from the relevant third party in respect
of the Third Party Claim (less the amount of any Tax
applicable in respect of such recovery and less an amount
equal to the costs and expenses reasonably incurred by the
Claiming Party (or any of its Affiliates) in enforcing the
Third Party Claim) shall be treated as a Shared Asset (to
the extent that the Third Party Claim is in respect of to a
Shared Liability) and as a Joint Asset (to the extent that
the Third Party Claim relates to a Joint Liability) for the
purposes of this Agreement;
2.21.2 Notwithstanding the provisions of Clause 6.5.1, neither party shall be
required to enforce (or procure that any of its Affiliates enforces),
any claim against a past or present employee or officer of such party
(or any of its Affiliates) unless, and then only to the extent that,
such claim relates to the dishonesty or fraud of such employee or
officer.
2.21.3 Clause 6.5.1 shall not apply in circumstances where Clause 6.3.4 does
not apply to the Shared Liability or Joint Liability to which the
relevant Third Party Claim relates.
2.22 IDENTIFIED LITIGATION
Schedule 4 and the Market Plan each set out brief details of certain
pending claims, actions, demands or proceedings ("Proceedings") which
have been brought or alleged by or against Diageo, Pernod Ricard, one
or more of their respective Affiliates or one or more Jointly-owned
Entities and which the parties have agreed to treat as Shared
Liabilities and/or Joint Liabilities. The following provisions shall
apply in respect of such Proceedings:
2.22.1 The party whose name is set out in the seventh column of Schedule 4 in
relation to each of the Proceedings described therein shall have the
sole conduct of such Proceedings and, in the case of Proceedings
described in the Market Plan, the party who is the country manager of
the jurisdiction in which such Proceedings are taking place shall have
the sole conduct of such Proceedings (the "Conducting Party").
2.22.2 The provisions of Clauses 6.2.2 to 6.2.6, 6.3.1 to 6.3.3 and 6.5 shall
apply, mutatis mutandis, in respect of the Proceedings described in
Schedule 4 and the Market Plan and any Shared Liabilities and Joint
Liabilities relating thereto with effect from the date of this
Agreement.
2.23 MARGARITAVILLE
2.23.1 Notwithstanding the provisions of Clause 5.1, Margaritaville
Liabilities:
26
2.23.1.1 which are not recovered by Diageo and/or Pernod Ricard under
the terms of the Vivendi Sale Agreement (and each party
shall use its reasonable endeavours to recover such
liabilities to the extent that they are recoverable under
the Vivendi Sale Agreement);
2.23.1.2 in respect of which an obligation to make a payment arises
or a claim is made on or prior to 21 December 2003,
shall be Shared Liabilities.
2.23.2 For the purposes of this Clause 6.7, "Margaritaville Liabilities"
means liabilities which relate to the MARGARITAVILLE Brand and which
are:
2.23.2.1 Historic Liabilities (including, for the avoidance of doubt,
claims arising from any prior arrangement between JES and
Margaritaville Holdings Inc. or its Affiliates relating to
the MARGARITAVILLE Brand); or
2.23.2.2 liabilities arising either as a result of Closing or as a
result of the change of licensee of the MARGARITAVILLE Brand
from JES to Austin, Nichols & Co., Incorporated,
but excluding any liability which arises out of the negligence or
default of Pernod Ricard or any Affiliate of Pernod Ricard.
2.23.3 Pernod Ricard shall, and shall procure that each of its Affiliates
shall, take all such action as is reasonable to mitigate any
Margaritaville Liability. Pernod Ricard shall procure, in so far as it
is able, that Diageo and/or its legal advisers shall be provided with
all such information as they may reasonably require in order to assess
the quantum of any Margaritaville Liability, save where to provide
such information would result in the loss of legal privilege in that
information or might result in a breach of any applicable anti-trust
or competition law principles, in which case (to the extent possible)
disclosure shall be on an external counsel basis or to an independent
third party who shall undertake not to disclose privileged or
anti-trust sensitive information received to Diageo.
2.24 LIABILITIES PASSING TO A DIFFERENT ENTITY
Where, by operation of law in any jurisdiction, a liability which is
primarily the liability of one entity could if not discharged by that
entity become a secondary liability of another entity:
2.24.1 the parties shall endeavour to ensure that the entity primarily liable
discharges it; but if
2.24.2 an entity secondarily liable in fact discharges it (in whole or in
part) the parties will ensure that the entity discharging the
liability is fully reimbursed so that the liability remains for the
purpose of this Agreement a liability of the original obligor and
shall at all times be treated as such for such purposes.
27
CLAIMS AGAINST VIVENDI
2.25 TREATMENT OF CLAIMS
2.25.1 The parties shall use their respective reasonable endeavours to
convene a meeting of the Supervisory Committee in March 2003 to
discuss the feasibility of making any claims under Section 10.1 of the
Vivendi Sale Agreement for breach of representations and warranties,
details of any potential claims thereunder and the process (if any) to
be followed in order to finalise any such claims and bring them
against Vivendi within the time limits prescribed under the Vivendi
Sale Agreement.
2.25.2 Subject to Clause 7.1.5, and save with the agreement of the other
party, no claim under Section 10.1 of the Vivendi Sale Agreement for
breach of representations and warranties (a "Claim") shall be pursued
by either party or any of their respective Affiliates or by any
Jointly-owned Entity or any of its Affiliates against Seagram or
Vivendi or any of their Affiliates under the Vivendi Sale Agreement
unless the Claim shall have first been referred to the parties' legal
counsel who agree, based on the facts available, that proceeding with
the Claim would, on a balance of probabilities, be a reasonable course
of action to take. In the absence of such agreement the parties shall
refer the matter to a New York law firm (the "Legal Expert"),
appointed by agreement between the parties or (if they do not agree)
upon the application by either party to the managing partner of Cleary
Gottlieb Steen & Hamilton and he shall have determined that, in his
opinion, based on the facts available to the Legal Expert, proceeding
with the Claim would, on a balance of probabilities, be a reasonable
course of action to take. The decision of the Legal Expert shall be
final. The Legal Expert shall be entitled, in his absolute discretion,
to seek such professional (including legal) advice as he shall
determine in order to arrive at his opinion. The fees and expenses of
the Legal Expert shall be borne equally by the parties.
2.25.3 The parties shall use reasonable endeavours to ensure that all matters
which they reasonably believe will or could give rise to a Claim
(other than a Claim which relates solely to a breach of any of the
representations and warranties contained in sections 4.7(a) and
4.7(b), or any of the indemnification provisions contained in article
VII, of the Vivendi Sale Agreement) of which they or any of their
Affiliates are aware are referred to each of the parties' legal
counsel in accordance with Clause 7.1.2 on or prior to such date as
shall be agreed between the parties' representatives at the meeting
referred to in Clause 7.1.1.
2.25.4 After 20 June 2003, each of Pernod Ricard and Diageo shall, within one
month of it or one of its Affiliates becoming aware of any matter
which they reasonably believe will or could give rise to a Claim
relating to a breach of any of the representations and warranties
contained in sections 4.7(a) and 4.7(b), or any of the indemnification
provisions contained in article VII, of the Vivendi Sale Agreement,
refer any such Claim to each of the parties' legal counsel in
accordance with Clause 7.1.2.
2.25.5 The provisions of Clause 7.1.2 shall not apply if compliance with the
terms of this paragraph would be reasonably likely to affect the
ability of either party or any of their respective Affiliates or any
Jointly-owned Entity to bring the Claim under the Vivendi Sale
Agreement (including, for the avoidance of doubt, the ability of
either party to serve a notice under the Vivendi Sale Agreement within
the requisite time period) or to prejudice materially the likelihood
of success of that Claim or the amount which might be recovered under
that Claim.
2.25.6 For the purposes of Clause 7.1.7 below, "Claimed Damages" means any
amount:
28
2.25.6.1 which is finally adjudicated by a court of competent
jurisdiction, or which is agreed (whether as part of any
settlement or otherwise) by Vivendi or any of its
Affiliates, to be payable by Vivendi or any of its
respective Affiliates in respect of a Claim; or
2.25.6.2 which a court of competent jurisdiction finally adjudicates
would have been payable, or which Vivendi or any of its
Affiliates agrees (whether as part of any settlement or
otherwise) would have been payable, by Vivendi or any of its
Affiliates in respect of a Claim but for any minimum
aggregate claim threshold (but not any threshold in relation
to individual claims) expressly imposed by the terms of the
Vivendi Sale Agreement; or
2.25.6.3 which the Legal Expert estimates would have been payable by
Vivendi or any of its Affiliates in respect of a Claim or in
respect of facts or circumstances which would have given
rise to the ability to make a Claim but for any overall cap
on the liability of Vivendi and/or its Affiliates expressly
imposed by the terms of the Vivendi Sale Agreement.
2.25.7 If:
2.25.7.1 any Claimed Damages are actually recovered by either party
or any of their respective Affiliates or by any
Jointly-owned Entity from Vivendi and/or its Affiliates; and
2.25.7.2 other Claimed Damages are not actually recovered by either
party or any of their respective Affiliates or by any
Jointly-owned Entity from Vivendi and/or its Affiliates as a
result of any threshold or cap described in Clauses 7.1.6.2
or 7.1.6.3 above,
then the parties agree that the Claimed Damages falling within Clause
7.1.7.1 above shall be divided between the claimants in the
proportions which the total Claimed Damages of each claimant bears to
the total amount of Claimed Damages.
2.26 COSTS AND PROCEEDS OF CLAIMS
2.26.1 The costs of bringing a claim under the Vivendi Sale Agreement shall
be borne:
2.26.1.1 in the case of a claim that results in the recovery of
Claimed Damages, by the person who is to receive the benefit
of any proceeds of such claim and, if more than one, by such
persons in proportion to the Claimed Damages recovered by
each of them respectively; and
2.26.1.2 in the case of a claim that does not result in the recovery
of Claimed Damages, by the person bringing the claim and, if
more than one, by such persons in proportion to the amounts
claimed by each of them respectively.
2.26.2 The proceeds of any claim in respect of any liability to taxation or
any other liability which cannot be attributed specifically to any
asset shall accrue to the party which bears the liability under this
Agreement (and if borne by both parties, the benefit of the proceeds
shall accrue in the same proportions as the burden of the liability is
split).
29
2.27 DEFAULT UNDER VIVENDI SALE AGREEMENT
2.27.1 Diageo undertakes to indemnify Pernod Ricard and its Affiliates for
any losses or claims suffered by Pernod Ricard or its Affiliates as a
result of the default of Diageo or any of its Affiliates or breach of
any of their respective obligations under the Vivendi Sale Agreement.
2.27.2 Pernod Ricard undertakes to indemnify Diageo and its Affiliates for
any losses or claims suffered by Diageo or its Affiliates as a result
of the default of Pernod Ricard or any of its Affiliates or breach of
any of their respective obligations under the Vivendi Sale Agreement.
GUARANTEE OF FIA IDENTIFIED TRANSACTIONS
8.1 Diageo hereby guarantees to Pernod Ricard (for itself and on behalf of
its Affiliates) the performance by Diageo's Affiliates of their
respective obligations to Pernod Ricard and its Affiliates under the
FIA Identified Sale and Purchase Agreements.
2.29 Pernod Ricard hereby guarantees to Diageo (for itself and as trustee
on behalf of its Affiliates) the performance by Pernod Ricard's
Affiliates of their respective obligations to Diageo and its
Affiliates under the FIA Identified Sale and Purchase Agreements.
2.30 The guarantees contained in Clauses 8.1 and 8.2 are continuing
guarantees and shall remain in force until all obligations of the
relevant guarantor and its Affiliates under the FIA Identified Sale
and Purchase Agreements have been fully performed and all sums payable
under them have been fully paid.
2.31 The obligations of a party as guarantor under this Clause 8 shall not
be affected by any act, omission, matter or thing which, but for this
provision, might operate to release or otherwise exonerate such party
from its obligations or affect such obligations including, without
limitation and whether or not known to such party:-
2.31.1 any time, indulgence, waiver or consent at any time given to the other
of them or any other person;
2.31.2 any compromise or release of, or abstention from perfecting or
enforcing, any rights or remedies against the other of them or any
other person;
2.31.3 any legal limitation, disability, incapacity or other circumstance
relating to the other of them or any other person or any amendment to
or variation of the terms of any of the FIA Identified Sale and
Purchase Agreements; and
2.31.4 any irregularity, unenforceability or invalidity of any obligations of
the other of them.
2.32 The guarantee contained in Clauses 8.1 and 8.2 may be enforced by
either of Pernod Ricard or Diageo without any steps or proceedings
having first been taken against the relevant Affiliate(s) in default.
GUARANTEES AND OTHER ASSURANCES
2.33 This Clause 9 shall apply where any person (the "Guaranteeing Party")
has given any Assurance to any other person in respect of any
obligation or liability in relation to:
30
2.33.1 (where the Guaranteeing Party is an Affiliate of Diageo) any Pernod
Ricard Asset, any Pernod Ricard On-sale Asset or any Seagram Venture
Asset;
2.33.2 (where the Guaranteeing Party is an Affiliate of Pernod Ricard) any
Diageo Asset, any Pernod Ricard On-sale Asset or any Seagram Venture
Asset; or
2.33.3 (where the Guaranteeing Party is a Jointly-owned Entity) any Diageo
Asset or Pernod Ricard Asset.
2.34 Where the Assurance relates:
2.34.1 to a Diageo Asset, the "Releasing Party" shall mean Diageo;
2.34.2 to a Pernod Ricard Asset, the "Releasing Party" shall mean Pernod
Ricard; and
2.34.3 to either a Pernod Ricard On-sale Asset or any Seagram Venture Asset
(or both) the "Releasing Party" shall mean both Diageo and Pernod
Ricard, who shall, in that case, bear any liability arising under this
Clause 9 as a Shared Liability.
2.35 The Releasing Party covenants that, at any time and from time to time,
it will execute and deliver all such instruments of assumption and
acknowledgements or take such other action as the Guaranteeing Party
may reasonably request in order to effect the release and discharge in
full of those Assurances in respect of which it is a Releasing Party,
and the substitution of the Releasing Party or any of its Affiliates
as the primary obligor in respect of, each such Assurance in each case
on a non-recourse basis to the Guaranteeing Party or any of its
Affiliates. Pending such release and discharge, the Releasing Party
hereby agrees with the Guaranteeing Party (on behalf of itself and
each of its Affiliates from time to time) that it will assume and pay
and discharge when due, and indemnify on an after-tax basis the
Guaranteeing Party and its Affiliates against, all such Assurances.
2.36 CONDUCT OF CLAIMS
If any action, claim, demand or proceedings are brought or alleged
against a Guaranteeing Party or any of its Affiliates in respect of
which an indemnity is to be sought from the Releasing Party pursuant
to this Clause 9, the Guaranteeing Party shall forthwith notify the
Releasing Party thereof and the Releasing Party shall have the option
to assume the defence thereof. If the Releasing Party fails to assume
such defence, it will be liable to the Guaranteeing Party for any
legal or other expenses subsequently and reasonably incurred by the
Guaranteeing Party or any of its Affiliates in connection with such
defence.
ASSETS AND LIABILITIES LEAVING THE GROUPS
2.37 Where:
2.37.1 a body corporate is or has since Closing been sold to a third party by
Diageo, Pernod Ricard, a Jointly-owned Entity or any of their
respective Affiliates; and
2.37.2 at the time of the sale that body corporate or a subsidiary of that
body corporate owned any asset or was subject to any liability which,
had it been sold to the purchaser or discharged by that body corporate
or subsidiary, would have given rise to a payment under any of Clauses
4, 5 or 6,
31
then the selling party shall, on that sale, be deemed to have received
or made an appropriate payment in respect of that asset or liability
to which the provisions of Clauses 4, 5 or 6 shall apply. Where the
selling party subsequently is subject to a liability or has the
benefit of an asset which, had it been identified at the time of sale,
would have given rise to a payment under this Clause then the selling
party shall be entitled to claim an appropriate payment or shall be
obliged to make an appropriate payment (as the case may be) pursuant
to Clauses 4, 5 or 6 (as appropriate). In this Clause 10, "appropriate
payment" means such payment as is fair and equitable in all the
circumstances having regard to (in the case of a sale carried out on
or prior to the date of this Agreement) the FIA Implementation
Principles and (in the case of a sale carried out after the date of
this Agreement) the SOFIA Implementation Principles.
PAYMENTS
2.38 NOTIFICATION OF AMOUNTS PAYABLE
2.38.1 Within 10 Business Days following the end of each Settlement Period,
each of Diageo and Pernod Ricard shall notify to the other the amounts
(if any) which it believes (acting in good faith) that it is entitled
to receive from the other party or which it believes (acting in good
faith) that it is obliged to pay to the other party under the terms of
this Agreement (including, without limitation, Clauses 4 to 6).
2.38.2 Where either party believes (acting in good faith) that it is entitled
to receive an amount in excess of US$1 million from the other party in
respect of any single matter or series of related matters arising out
of the same circumstances, it may notify such amount to the other
party at any time.
2.38.3 The failure by any party to notify an amount that it is entitled to
receive or that the other party is obliged to pay shall not constitute
a breach of this Agreement and shall not prejudice or constitute a
waiver of any claim it may have in respect of such amount.
2.39 PAYMENT BY SINGLE NET PAYMENT
2.39.1 Following notification of an amount pursuant to Clause 11.1.1 or
11.1.2, the parties shall co-operate in good faith and seek to agree
as soon as reasonably practicable the amounts payable between them.
Amounts so agreed shall be settled on a date (a "Payment Date")
falling not later than five Business Days after the date on which any
such agreement is reached, by a net payment in US dollars by Diageo to
Pernod Ricard or Pernod Ricard to Diageo (as the case may be). To the
extent that any such payment is not so made the amount not paid shall
accrue default interest in accordance with Clause 11.5 until the
actual date of payment to the person entitled to the relevant amount.
2.39.2 Where a party is required to account to the other for an amount in
excess of US$1 million received by it, it shall pay (or procure that
one or more of its Affiliates pays) such amount to the other party on
a date (the "Payment Date") falling not later than five Business Days
after the date of receipt.
32
2.40 CONFIRMATION OF SINGLE NET PAYMENT
Within five Business Days of each Payment Date, the party making the
payment on that Payment Date shall deliver to the other party written
confirmation that the payment referred to in Clause 11.2.1 has been
made.
2.41 CURRENCY CONVERSION
In respect of any amount payable under this Agreement which is
expressed in a currency other than US dollars, that amount shall be
converted to US dollars at the closing spot rate as shown on Telerate
screen page 44538 as at the day being two Business Days before the
date on which the obligation to make the payment arises.
2.42 DEFAULT INTEREST
Interest shall accrue daily on the US dollar amount of all net amounts
due and payable under this Agreement from the due date of payment
until the actual date of payment at the rate of 100 basis points above
US$ LIBOR (after as well as before judgment).
2.43 PURCHASE PRICE ADJUSTMENTS
In order to effect the parties' intentions adjustments to be made
pursuant to Clauses 4, 5 and 6 shall be treated as purchase price
adjustments among the Primary Purchasers and will be taken into
account in determining the final purchase prices in respect of the
Acquired Assets.
2.44 ADJUSTMENTS TO PAYMENT AMOUNTS
Where the parties agree or it is otherwise determined that an amount
which formed the basis of any net payment pursuant to Clause 11.2.1
was incorrectly stated, the parties shall procure that the net amount
payable between them as at the next following Payment Date is adjusted
to correct the earlier error by adding or subtracting (as appropriate)
the amount by which the original amount was incorrectly stated.
MISDIRECTED CASH RECEIPTS
2.45 To the extent that a party or any of its Affiliates or a Jointly-owned
Entity (the "recipient") receives on or after Closing any cash amount
which relates to a receivable which, under the terms of this
Agreement, is an asset (other than an After-acquired Asset) of another
person (a "Misdirected Cash Receipt"), Diageo and/or Pernod Ricard
shall, or shall procure that the recipient shall, account to that
other person for such cash amount.
2.46 Subject to Clause 12.3, amounts payable under this Clause 12 shall be
notified to the other party in accordance with Clause 11.1.1 not later
than ten Business Days after the end of the Settlement Period in which
the relevant amount is received by the recipient (or, if later, is
identified as being a Misdirected Cash Receipt) and shall be settled
as part of the net settlement pursuant to Clause 11.2.1.
2.47 Where the amount of a Misdirected Cash Receipt exceeds US$1 million,
Clause 12.2 shall not apply and the full amount of such receipt shall
be paid to the person entitled thereto promptly and in any event
within 10 Business Days after the recipient
33
receives the relevant Misdirected Cash Receipt (or, if later,
identifies that such receipt has been received) and Clause 11.5 shall
apply in the event of non-payment.
2.48 Within ten Business Days after a party or any of its Affiliates or a
Jointly-owned Entity receives any Misdirected Cash Receipt (or, if
later, identifies that such a receipt has been received) the party who
received, or whose Affiliate received, or who is, in accordance with
the Tax Plan, responsible for the management of the Jointly-owned
Entity which received the Misdirected Cash Receipt shall deliver to
the other party notice of such Misdirected Cash Receipt together with
copy bank confirmation setting out the exact amount received.
MISCELLANEOUS OBLIGATIONS OF THE PARTIES
2.49 INVESTMENT CANADA UNDERTAKING
Diageo agrees to indemnify Pernod Ricard, its Affiliates and each
Jointly-owned Entity against any and all liabilities incurred by
Pernod Ricard, its Affiliates and each Jointly-owned Entity to the
recipients in respect of the Investment Canada Undertakings to the
extent that such liabilities do not arise directly or indirectly as a
result of Pernod Ricard or any of its Affiliates or any Jointly-owned
Entity terminating co-pack arrangements in relation to Dorval/the
Dorval facility.
2.50 GODIVA
It is agreed that:
2.50.1 Diageo shall be permitted to approach N.V. Godiva Belgium S.A. and/or
its Affiliates with a view to it or one of its Affiliates entering
into an agreement with Diageo or one of its Affiliates for the
distribution of the Godiva brand in the United States and/or Canada.
2.50.2 Pernod Ricard shall not before 30 June 2003 directly or indirectly
enter into any discussions, negotiations or agreement with N.V. Godiva
Belgium S.A. and/or its Affiliates regarding the distribution of the
Godiva brand by Pernod Ricard or any of its Affiliates within the
United States and/or Canada.
2.50.3 Subject to Pernod Ricard complying with its obligations under Clause
13.2.2, Diageo shall pay to Pernod Ricard an amount equal to the
direct brand contribution of Godiva less the hosting rate, such
amounts to be calculated on the basis adopted by the parties for the
purpose of the Framework and Implementation Agreement for the period
from 21 December 2001 to 30 June 2003.
2.50.4 Amounts payable by Diageo under Clause 13.2.3 shall be notified to
Diageo by Pernod Ricard in accordance with Clause 11.1 and shall be
settled as part of the net settlement pursuant to Clause 11.2.1.
2.51 PATENT; EXTENSION OF LICENCE
2.51.1 Diageo hereby confirms that it does not and will not object to the use
by Pernod Ricard and its Affiliates at no charge of the patent
registered in respect of a rotary turret with pedestals and method of
controlling the rotation thereof, brief details of which are contained
in paragraph 3.1 of Part A of Schedule 1.
34
2.51.2 Diageo agrees that it will extend, or will procure that one of its
Affiliates will extend, to Pernod Ricard and its Affiliates a right to
use the UPC barcode 87000 for a period of nine months from the date of
this Agreement at no cost to Pernod Ricard or any of its Affiliates.
INSURANCE
2.52 Each party shall procure that each of the Jointly-owned Entities in
respect of which it is the Managing Party is at all times from and
including the date of this Agreement insured against all normal
insurable liabilities which may arise from the business of the
relevant Jointly-owned Entity at not less than the same level of
cover, and on the same basis, as existed in respect of the business of
such entity at the date of this Agreement. In respect of each
Jointly-owned Entity, the relevant Managing Party may, with the
consent of the other party (such consent not to be unreasonably
withheld or delayed), reduce the scope of such insurance and such
level of cover in respect of future periods of cover to the extent
reasonable and consistent with prudent industry practice in the event
that the scale or scope of the business of such Jointly-owned Entity
reduces after the date of this Agreement.
2.53 The costs of providing insurance cover in accordance with Clause 14.1
and of paying or meeting any deductible or similar charge in
connection with any claim made under such cover shall be for the
account of the relevant Jointly-Owned Entity.
MARKET PLAN AND RISK PROPERTIES
2.54 MARKET PLAN
2.54.1 The parties shall use their respective reasonable endeavours to
implement the Market Plan in accordance with its terms, subject to
such amendments thereto as may be agreed from time to time by the
Supervisory Committee or such persons as such committee may nominate
from time to time.
2.54.2 In implementing the Market Plan, the parties shall have regard to the
Implementation Principles and shall act with no less level of skill
and care than that with which they have acted in relation to the
Jointly-owned Entities prior to the date of this Agreement.
2.54.3 In the event that either party becomes aware that implementation of
the Market Plan is likely to result in costs, expenses or liabilities
materially different from those set out in the Market Plan, it shall
as soon as reasonably practicable notify the other party in writing.
Each party shall keep the other party promptly informed of any
material developments in relation to the Jointly-owned Entities for
which it is the Managing Party. Without limitation to the foregoing,
the Managing Party of each Jointly-owned Entity shall notify the other
party promptly upon becoming aware of any Third Party Proceedings
involving any such Jointly-owned Entity which may give rise to a
liability of US$1 million or more and shall keep the other party
informed of any material developments in relation to such Third Party
Proceedings.
2.54.4 In the event of any inconsistency between the Tax Plan and the Market
Plan, the Supervisory Committee shall decide which of such plans
should take precedence and the parties shall amend the provisions of
one or both of such plans accordingly.
35
15.2 RISK PROPERTIES
An Affiliate of Diageo (the "Occupying Affiliate") is the lessee of
the Risk Properties (as defined below). Pursuant to Schedule 9, the
parties have acknowledged and agreed that (if and to the extent that
the Risk Properties (or any part or parts thereof) are not being used
by Diageo or an Affiliate) all liabilities, costs and expenses
whatsoever arising under or in connection with the Occupying
Affiliate's leases over the Risk Properties (including, without
limitation, rent, service charges, property and other Taxes,
dilapidation charges, maintenance and guarding costs and utility
charges) which are attributable to the Risk Properties (or the
relevant part or parts thereof) that are not being used (such
liabilities, charges, costs and expenses being together the
"Occupation Costs") shall be a Shared Liability or Joint Liability, as
the case may be. Diageo shall procure that the Occupying Affiliate
shall use its reasonable efforts to mitigate the Occupation Costs.
Without limitation, the Occupying Affiliate may (but shall not be
obliged to):
(i) sublet all or part of all or any of the Risk Properties to
one or more sub-lessees of the Property; and/or
(ii) assign or otherwise transfer all or part of the Occupying
Affiliate's interest in all or any of the Leases to any
other person; and/or
(iii) surrender or otherwise lawfully terminate all or any of the
Leases,
in each case on such terms and subject to such conditions as the
Occupying Affiliate may determine to accept. All liability, costs and
expenses ("Mitigation Expenses") so incurred by the Occupying
Affiliate shall also be a Shared Liability or a Joint Liability, as
the case may be. Diageo shall (or shall procure that the Occupying
Affiliate shall) consult with Pernod Ricard before taking any step by
way of mitigation of the Occupation Costs which would involve material
expenditure on the part of the Occupying Affiliate. In this clause,
"Risk Properties" means the properties defined as such in the section
of the Market Plan relating to the US.
JOINTLY-OWNED ENTITIES
2.55 AUDITORS
2.55.1 The Managing Party in respect of each Jointly-owned Entity shall
procure that such Jointly-owned Entity shall have an auditor whether
or not that entity is required by law to have an auditor, and such
auditor shall be nominated by such Managing Party.
2.55.2 The Managing Party in respect of each Jointly-owned Entity shall use
its reasonable endeavours to procure that the working papers of any
auditor appointed in respect of that Jointly-owned Entity in
accordance with Clause 16.1.1 shall be made available to Pernod Ricard
(where the Managing Party is Diageo) or to Diageo (where the Managing
Party is Pernod Ricard).
2.55.3 The costs of each auditor appointed under this Clause 16 shall be
borne by the Jointly-owned Entity in respect of which such auditor is
appointed.
2.56 BOOKS AND RECORDS
Each Managing Party shall be responsible for (i) procuring that the
statutory books and the accounting books and records of its
Jointly-owned Entities are kept and
36
maintained, and (ii) procuring that all statutory returns, filings and
registrations that are reasonably required to be made by such entities
are made. In fulfilling such responsibilities, each Managing Party
shall act in a timely manner and use reasonable skill and care. The
out of pocket costs and expenses incurred in connection with such
responsibilities shall be borne by the relevant Jointly-owned
Entities.
2.57 FUNDING
Without prejudice to the Market Plan and subject to the provisions of
Schedule 11, where any Jointly-owned Entity has any ongoing funding
requirement, Diageo or an Affiliate of Diageo and Pernod Ricard or an
Affiliate of Pernod Ricard shall support such funding requirement by
either (i) providing inter-company loans to the Jointly-owned Entity
or (ii) supporting a third party loan facility or (iii) subscribing
for equity or other membership interests, in each case in the Diageo
Proportion and the Pernod Ricard Proportion respectively.
2.58 TREASURY
The provisions of Schedule 11 shall apply.
2.59 INTELLECTUAL PROPERTY
Where any Intellectual Property Asset owned by any Jointly-owned
Entity has not been allocated under this Agreement to Diageo and/or
its Affiliates or Pernod Ricard and/or its Affiliates as a Diageo
Asset or a Pernod Ricard Asset (as the case may be), the Managing
Party of such Jointly-owned Entity:
2.59.1 shall be entitled to arrange the assignment or transfer of such
Intellectual Property Asset for nil or other consideration (but at its
own cost and expense) to itself or one of its Affiliates whereupon
such Intellectual Property Asset shall become a Diageo Asset (where
Diageo is the Managing Partner of the relevant Jointly-owned Entity)
or a Pernod Ricard Asset (where Pernod Ricard is the Managing Party of
the relevant Jointly-owned Entity); and/or
2.59.2 shall take such other action (at the cost and expense of the
Jointly-owned Entity) in relation to such Intellectual Property Asset
as it may (acting reasonably) consider appropriate in connection with
the implementation of the Market Plan.
ACCESS TO INFORMATION AND ACCOUNTS
2.60 ACCESS TO INFORMATION BY THE PARTIES AND THEIR AUDITORS
Each party (the "Disclosing Party") shall, and shall procure that its
Affiliates shall, and shall (so far as it is able to do so) procure
that any Jointly-owned Entity shall, allow to the other party (the
"Receiving Party") and its Affiliates and to the auditors and
professional advisers of the Receiving Party access to all information
held by, or under the control of, the Disclosing Party or any of its
Affiliates or any Jointly-owned Entity (each such person being a
"Disclosing Affiliate"):
2.60.1 in so far as it relates to the Diageo Assets (where the Receiving
Party is Diageo) and/or the Pernod Ricard Assets (where the Receiving
Party is Pernod Ricard) and/or the Seagram Venture Assets and/or the
Pernod Ricard On-sale Assets (whether the Receiving Party is Diageo or
Pernod Ricard);
37
2.60.2 to the extent that such access is reasonably necessary for the purpose
of investigating any claim under this Agreement or mitigating the
amount of any such claim; or
2.60.3 to the extent that such access is reasonably necessary for the
purposes of this Agreement, the Vivendi Sale Agreement or any of the
agreements entered into in connection with the transactions described
in Schedule 7 (including, without limitation, for the purposes of
verifying any information provided by any Disclosing Affiliate to the
Receiving Party or any of its Affiliates under or pursuant to the
terms of this Agreement),
in such manner and at such times as the Receiving Party or any of its
Affiliates shall reasonably require on a timely basis, provided that
nothing in this Clause 17 shall oblige any such person to allow to the
Receiving Party or any of its Affiliates access to information which:
2.60.3.1 does not relate to the relevant assets referred to in Clause
17.1.1 above; or
2.60.3.2 is commercially sensitive or confidential information
relating, where the Receiving Party is Diageo, to the Pernod
Ricard Assets or the wider business of Pernod Ricard and its
Affiliates and, where the Receiving Party is Pernod Ricard,
to the Diageo Assets or the wider business of Diageo and its
Affiliates; or
2.60.3.3 if it were disclosed would result in the loss of legal
privilege in that information or might result in a breach of
any applicable anti-trust or competition law principles, in
which case (to the extent possible) disclosure shall be on
an external counsel basis or to an independent third party
who shall undertake not to disclose privileged or anti-trust
sensitive information to such other party.
2.61 ACCESS TO INFORMATION BY AUDITORS ONLY
In the case of information which would be required by Clause 17.1 to
be made available to the Receiving Party or any of its Affiliates but
for the provisions of Clause 17.1.3.2, the Disclosing Party shall, or
shall procure that the relevant Disclosing Affiliate(s) shall, subject
to Clause 17.1.3.3, make that information available to the auditors of
the Receiving Party in such manner and at such times as the Receiving
Party or any of its Affiliates shall reasonably require, provided that
the Receiving Party shall first procure that its auditors shall agree
with the Disclosing Party that it shall not disclose such information
to the Receiving Party or any of its Affiliates.
2.62 SALE OF AFFILIATES
Where any party to this Agreement disposes of any of its Affiliates to
any third party, and that Affiliate holds or controls information of a
type referred to in Clause 17.1 or disposes of any business or assets
including any such information, it shall use its reasonable endeavours
to procure that on such sale the purchaser of such Affiliate, business
or asset agrees to be bound by the terms of this Clause 17 (to the
extent applicable at the relevant time) as if it were a Disclosing
Party.
2.63 FIREWALL PROCEDURES
38
Each party shall, and shall procure that its Affiliates shall, comply
with the firewall procedures agreed between them for the purposes of
the Framework and Implementation Agreement.
2.64 DOCUMENT RETENTION
2.64.1 Diageo shall use its reasonable endeavours to ensure that neither it
nor any of its Affiliates destroys any data, original documents or
information relating to the Pernod Ricard Assets, the Seagram Venture
Assets or the Pernod Ricard On-sale Assets for a period of 7 years
after the date of this Agreement. Following the expiry of such 7 year
period, Diageo shall use its reasonable endeavours to notify Pernod
Ricard before it or any of its Affiliates destroys any such data,
documents or information and to give Pernod Ricard the opportunity (at
its own cost and expense) to take copies thereof prior to such
destruction.
2.64.2 Pernod Ricard shall use its reasonable endeavours to ensure that
neither it nor any of its Affiliates destroys any data, original
documents or information relating to the Diageo Assets, the Seagram
Venture Assets or the Pernod Ricard On-sale Assets for a period of 7
years after the date of this Agreement. Following the expiry of such 7
year period, Pernod Ricard shall use its reasonable endeavours to
notify Diageo before it or any of its Affiliates destroys any such
data, documents or information and to give Diageo the opportunity (at
its own cost and expense) to take copies thereof prior to such
destruction.
2.65 PROVISION OF INFORMATION FOR REPORTING REQUIREMENTS
Each party shall provide to the other party on a timely basis all such
information within its control, or that of its Affiliates or the
Jointly-owned Entities in respect of which it is the Managing Party,
as is reasonably required by that other party for the purposes of the
statutory reporting requirements of that party and/or its Affiliates.
PERNOD RICARD ON-SALE ASSETS; SEAGRAM VENTURE ASSETS, ADDITIONAL ASSETS AND
MARTELL
2.66 JOINT AND SEVERAL LIABILITY UNDER SALE AGREEMENTS
2.66.1 Where, (i) under or in connection with the transactions listed on Part
A of Schedule 7 Diageo (or any of its Affiliates) and Pernod Ricard
(or any of its Affiliates) undertake or have undertaken a liability
jointly or jointly and severally or (in circumstances where it was the
intention of the parties or their respective Affiliates to share such
liability in the Diageo Proportion and the Pernod Ricard Proportion)
severally (a "Joint Sale Liability"), or (ii) under or in connection
with the transactions listed on Part B of Schedule 7 Pernod Ricard (or
any of its Affiliates) undertakes or has undertaken a liability (an
"On-sale Liability"), the parties agree that such liabilities shall be
charged on to any relevant Joint-Owned Entity which has primary
liability in respect thereof (to the extent such on-charge is
permissible) and otherwise shall be Shared Liabilities or Joint
Liabilities (as the case may be), and the provisions of Clause 6 shall
apply to any such Shared Liability or Joint Liability.
2.67 SEAGRAM VENTURE ASSETS AND ADDITIONAL ASSETS IN SINGLE OWNERSHIP
2.67.1 Where Diageo or an Affiliate of Diageo has prior to the date of this
Agreement owned an asset which was a Seagram Venture Asset or an
Additional Asset (within
39
the meaning of the Framework and Implementation Agreement) and on or
after the date of this Agreement that owner:
2.67.1.1 receives any cash from any person (other than Diageo or an
Affiliate of Diageo) in respect of that asset representing
the proceeds of disposal prior to the date of this Agreement
of that asset (including, without limitation, in relation to
the sale of that asset to Pernod Ricard or an Affiliate of
Pernod Ricard or a third party but not including any cash
received in the ordinary course of trading); or
2.67.1.2 pays any cash to any person (other than Diageo or an
Affiliate of Diageo) in respect of that asset representing
the costs of disposal (prior to the date of this Agreement)
of that asset (but not including any cash paid in the
ordinary course of trading),
then, in the case of 18.2.1.1, Diageo shall pay to Pernod Ricard and,
in the case of 18.2.1.2, Pernod Ricard shall pay to Diageo, an amount
equal to the Pernod Ricard Proportion of the amount so received or
paid.
2.67.2 Where Pernod Ricard or an Affiliate of Pernod Ricard has prior to the
date of this Agreement owned an asset which was a Seagram Venture
Asset or an Additional Asset (within the meaning of the Framework and
Implementation Agreement) and on or after the date of this Agreement
that owner:
2.67.2.1 receives any cash from any person (other than Pernod Ricard
or an Affiliate of Pernod Ricard) in respect of that asset
representing the proceeds of disposal prior to the date of
this Agreement of that asset (including, without limitation,
in relation to the sale of that asset to Diageo or an
Affiliate of Diageo or a third party but not including any
cash received in the ordinary course of trading); or
2.67.2.2 pays any cash to any person (other than Pernod Ricard or an
Affiliate of Pernod Ricard) in respect of that asset
representing the costs of disposal (prior to the date of
this Agreement) of that asset (but not including any cash
paid in the ordinary course of trading),
then, in the case of 18.2.2.1, Pernod Ricard shall pay to Diageo and,
in the case of 18.2.2.2, Diageo shall pay to Pernod Ricard, an amount
equal to the Diageo Proportion of the amount so received or paid.
2.67.3 For the avoidance of doubt, the provisions of this Clause 18.2 shall
not apply to cash received or paid pursuant to an FIA Identified Sale
and Purchase Agreement, an FIA Additional Sale and Purchase Agreement
or the Global Sale and Purchase Agreement.
2.67.4 Subject to Clause 18.2.5, amounts payable by Diageo under Clause
18.2.1 or Pernod Ricard under Clause 18.2.2 shall be notified to the
other party in accordance with Clause 11.1.1 not later than 10
Business Days after the end of the Settlement Period in which the
relevant amount is received and shall be settled as part of the net
settlement pursuant to Clause 11.2.1.
2.67.5 Where an amount payable by Diageo under Clause 18.2.1 or by Pernod
Ricard under Clause 18.2.2 in respect of cash received exceeds US$1
million, Clause 18.2.4 shall not apply and the full amount payable by
Diageo or Pernod Ricard (as the case may be) under such clauses shall
be paid to the other party promptly and in any event
40
within 10 Business Days after the date of receipt, and Clause 11.5
shall apply in the event of non-payment.
2.67.6 Amounts payable by Pernod Ricard under Clause 18.2.1 or by Diageo
under Clause 18.2.2 in respect of costs of disposal shall be notified
to the paying party in accordance with Clause 11.1.1 or 11.1.2 (as the
case may be) and shall be settled as part of the net settlement
pursuant to Clause 11.2.1.
2.67.7 This Clause 18.2 does not apply to any asset which was beneficially
held at Closing by JES or an Affiliate of JES which is incorporated,
formed or constituted in the United States of America, or which was
contributed by JES or any such Affiliate to Treat Venture LLC pursuant
to the contribution agreement dated 21 December 2001 between Gramet
Holdings Corp., JES and Treat Venture LLC.
2.68 MARTELL ASSETS
In the event that:
2.68.1 Pernod Ricard and/or any of its Affiliates disposes of or agrees to
dispose of some or all of the Martell Assets prior to 21 June 2003;
and
2.68.2 the aggregate value of the consideration received by Pernod Ricard
and/or its Affiliates in respect of such disposal(s) exceeds
US$250,000,000,
then Pernod Ricard shall pay to Diageo an amount equal to the Diageo
Proportion multiplied by the amount of such excess.
TERMINATION OF THE FRAMEWORK AND IMPLEMENTATION AGREEMENT
2.69 With effect from the execution of this Agreement, the Framework and
Implementation Agreement shall be terminated and shall be of no
further effect and the parties shall be released and discharged from
their respective obligations under that agreement, but in each case
without prejudice to:
2.69.1 any breach of the Framework and Implementation Agreement occurring
prior to such termination PROVIDED THAT the party wishing to claim in
respect of such a breach shall only be able to recover once under the
Framework and Implementation Agreement and this Agreement in respect
of the same loss; and
2.69.2 any accrued rights of the parties under the Framework and
Implementation Agreement which are to be dealt with in accordance with
Schedule 9; and
2.69.3 any settlement between the parties or their respective Affiliates in
accordance with the Framework and Implementation Agreement, Schedule 9
or otherwise (whether before, on or after the date of this Agreement).
2.70 For the avoidance of doubt, Clause 19.1 shall not operate to terminate
any agreements or arrangements entered into pursuant to the Framework
and Implementation Agreement. The termination of the Framework and
Implementation Agreement shall not affect the interpretation or
application of any provision of this Agreement which refers to such
agreement (with the intent that references in this agreement to
provisions of the Framework and Implementation Agreement shall, save
in Clause 19.1 and where expressly provided otherwise, be construed as
references to such
41
provisions as if they were in full force and effect) or limit the
rights of the parties under this Agreement.
2.71 The payments set out in Schedule 9 shall be made in accordance with
the provisions of that Schedule.
FURTHER ASSURANCES AND MITIGATION
2.72 Each of the parties undertakes to co-operate in good faith to ensure
that it and its Affiliates do such acts and things as may be
reasonably necessary to give effect to this Agreement.
2.73 Diageo and Pernod Ricard shall, or shall procure that their respective
Affiliates, do all such acts and things and shall execute or procure
the execution of all such other documents as the other may from time
to time reasonably require in connection with (i) the completion of
the transactions contemplated by the Vivendi Sale Agreement, clauses 8
and 9 of the Framework and Implementation Agreement and this Agreement
(including, without limitation, completion of the transfer to the
person entitled thereto of legal title to shares or other membership
interests in bodies corporate which are comprised in the Acquired
Assets) and (ii) those matters described in Schedule 10.
2.74.1 As soon as reasonably practicable following the date of this
Agreement, the parties shall co-operate with one another and, acting
in good faith, seek to agree, execute and implement (or, so far as
practicable with effect from the date of this Agreement, procure that
there are agreed and implemented) such amendments to the FIA
Identified Sale and Purchase Agreements, FIA Additional Sale and
Purchase Agreements, Global Sale and Purchase Agreement and all other
relevant agreements contemplated thereby or related thereto (together,
the "Relevant Documents") as may be reasonably necessary in connection
with and/or to reflect the termination of the Framework and
Implementation Agreement and the entry by the parties into this
Agreement. In so doing the parties shall have regard to the SOFIA
Implementation Principles.
2.74.2 Pending agreement and implementation of the amendments referred to in
Clause 20.3.1, each party shall (and shall procure that its Affiliates
and, so far as within its power, any relevant Jointly-owned Entities
shall), so far as practicable, give effect to the provisions of this
Agreement and have regard to the SOFIA Implementation Principles when
observing the terms of the Relevant Documents.
2.75 The parties agree that where, as a consequence of the operation of
this Agreement, any costs, liabilities or expenses are to be borne
jointly by the parties (whether as Shared Liabilities or Joint
Liabilities) they shall each seek to minimise such costs, liabilities
or expenses.
CONFIDENTIALITY
2.76 CONFIDENTIAL INFORMATION
Each party shall treat as confidential all information obtained as a
result of negotiating and entering into this Agreement and the
Framework and Implementation Agreement and which relates to:
2.76.1 the provisions of this Agreement or the Framework and Implementation
Agreement;
42
2.76.2 the negotiations relating to this Agreement or the Framework and
Implementation Agreement;
2.76.3 the other party or any of its Affiliates;
2.76.4 the Acquired Assets acquired, directly or indirectly, from Vivendi
(save to the extent that any such asset is ultimately acquired or held
by that party or any of its Affiliates); or
2.76.5 any Jointly-owned Entity.
2.77 USE OF CONFIDENTIAL INFORMATION
Each party shall:-
2.77.1 not disclose any such confidential information to any person other
than any of its directors or employees whose duties include the
implementation of this Agreement and who needs to know such
information in order to discharge his duties;
2.77.2 not use any such confidential information other than for the purposes
of, or in connection with, the implementation of this Agreement; and
2.77.3 procure that any person to whom such confidential information is
disclosed by it complies with the restrictions set out in this Clause
21 as if such person were a party to this Agreement.
2.78 PERMITTED DISCLOSURE BY EITHER PARTY
Notwithstanding the previous provisions of this Clause 21, any party
may disclose any such confidential information:-
2.78.1 if and to the extent required by law or for the purpose of any
judicial proceedings save that, to the extent practicable, such
disclosure shall only be made after consultation with the other party;
2.78.2 if and to the extent required by any securities exchange or regulatory
or governmental body to which that party is subject, wherever
situated, including (amongst other bodies) the Financial Services
Authority, the London Stock Exchange plc, the Commission des
Operations de Bourse, The Panel on Takeovers and Mergers, the U.S.
Securities and Exchange Commission, the Federal Trade Commission, the
European Commission or the United States Department of Justice,
whether or not the requirement for information has the force of law
save that, to the extent practicable, such disclosure shall only be
made after consultation with the other party;
2.78.3 (subject to Clause 21.2.3) to its professional advisers, auditors and
bankers; or
2.78.4 (subject to Clause 21.2.3) to a bona fide prospective purchaser of
part or all of the Acquired Assets owned by that party, to the extent
such disclosure is reasonably necessary in connection with the
proposed sale;
2.78.5 if and to the extent the information has come into the public domain
through no fault of that party.
43
2.79 INFORMATION RELATING TO DIAGEO ASSETS AND PERNOD RICARD ASSETS
Clauses 21.1 and 21.2 shall not apply to:
2.79.1 the disclosure, or use by, Diageo or any of its Affiliates of
information to the extent that such information relates to Diageo
Assets; and
2.79.2 the disclosure, or use by, Pernod Ricard or any of its Affiliates of
information to the extent that such information relates to Pernod
Ricard Assets.
2.80 DURATION OF OBLIGATIONS
The restrictions contained in this Clause 21 shall continue to apply
to each party without limit in time.
ANNOUNCEMENTS
2.81 RESTRICTION ON ANNOUNCEMENTS
No announcement concerning this Agreement, the Framework and
Implementation Agreement or the transactions contemplated by this
Agreement or the Framework and Implementation Agreement shall be made
by either party without the prior written approval of the other, such
approval not to be unreasonably withheld or delayed.
2.82 PERMITTED ANNOUNCEMENTS
Notwithstanding the previous provisions of this Clause 22, either
party may make an announcement concerning this Agreement, the
Framework and Implementation Agreement or the transactions
contemplated by this Agreement or the Framework and Implementation
Agreement if:
2.82.1 required by law save that, to the extent practicable, such
announcement shall only be made after consultation with the other
party; or
2.82.2 required by any securities exchange or regulatory or governmental body
to which that party is subject, wherever situated, including (amongst
other bodies) the Financial Services Authority, the London Stock
Exchange plc, the Commission des Operations de Bourse, The Panel on
Takeovers and Mergers, the U.S. Securities and Exchange Commission,
the Federal Trade Commission, the European Commission or the United
States Department of Justice, whether or not the requirement has the
force of law save that, to the extent practicable, such announcement
shall only be made after consultation with the other party.
2.83 DURATION OF RESTRICTIONS
The restrictions contained in this Clause 22 shall continue to apply
to each party without limit in time.
ASSIGNMENT
This Agreement shall be binding on and enure for the benefit of each
party's successors in title. No party shall assign (or declare any
trust in favour of a third party over) all or any part of the benefit
of, or its rights or benefits under, this Agreement.
44
VARIATION
Save as otherwise provided in this Agreement, this Agreement may only
be varied in writing signed by each of the parties.
NOTICES
2.84 NOTICES TO BE IN WRITING
Subject to the provisions of Clause 27.3, a notice under this
Agreement shall only be effective if it is in writing; faxes are
permitted but e-mail is not permitted.
2.85 ADDRESSES
Subject to the provisions of Clause 27.3, notices under this Agreement
shall be sent to a party at its address or number and for the
attention of the individual set out below:
PARTY AND TITLE OF INDIVIDUAL ADDRESS FACSIMILE NO.
----------------------------- ------- -------------
Pernod Ricard See page 1 +33 1 41 00 42 22
Attn: Directeur General
copied to Legal Department See page 1 +33 1 41 00 42 22
copied to Robert Sutton 10 Norwich Street +44 20 7831 9607
Macfarlanes London EC4A 1BD
Diageo See page 1 +44 20 7927 4600
Attn: Company Secretary
copied to General Counsel +44 20 7927 4864
and to Jonathan Marks, One Bunhill Row, London +44 20 7090 5000
Slaughter and May EC8Y 8YY
Provided that a party may change its notice details on giving notice
to the other parties of the change in accordance with this Clause 25.
That notice shall only be effective on the date falling five clear
Business Days after the notification has been received or such later
date as may be specified in the notice.
2.86 RECEIPT OF NOTICES
2.86.1 Any notice given under this Agreement shall, in the absence of earlier
receipt, be deemed to have been duly given as follows:
2.86.1.1 if delivered personally, on delivery;
2.86.1.2 if sent by first class inland post, two clear Business Days
after the date of posting;
2.86.1.3 if sent by airmail, six clear Business Days after the date
of posting;
2.86.1.4 if sent by facsimile, when despatched.
45
2.86.2 Any notice given under this Agreement outside Working Hours in the
place to which it is addressed shall be deemed not to have been given
until the start of the next period of Working Hours in such place.
DISPUTE RESOLUTION
All disputes arising in connection with this Agreement (whether
relating to an alleged breach of the terms of this Agreement or
otherwise), but excluding matters falling to be determined in
accordance with Clause 7.1, shall be resolved in accordance with the
provisions of Clauses 27 to 29.
SUPERVISORY COMMITTEE
2.87 DELEGATION TO SUPERVISORY COMMITTEE
Each of Diageo and Pernod Ricard shall delegate to a committee
comprising Shaun Parker and Emmanuel Babeau, or such other
representative(s) as Diageo or Pernod Ricard may from time to time
notify to the other in accordance with Clause 25 (the "Supervisory
Committee") all powers, discretions and authorities necessary for the
purposes of this Clause 27 and Clause 28 and shall enter into such
agreements or arrangements as may be approved by, and comply with and
be bound by any resolution of, the Supervisory Committee.
2.88 POWERS OF SUPERVISORY COMMITTEE
The Supervisory Committee shall have all powers, discretions and
authorities necessary to:-
2.88.1 monitor the operation and implementation of this Agreement;
2.88.2 manage and direct all dealings of the parties with Vivendi in respect
of the Vivendi Sale Agreement (including, without limitation, any
claims under any warranties or indemnities under that agreement); and
2.88.3 discuss and resolve any disputes arising in connection with this
Agreement or the Framework and Implementation Agreement.
2.89 CONVENING SUPERVISORY COMMITTEE MEETINGS
2.89.1 Diageo may, at any time, call a meeting of the Supervisory Committee
for any purpose in connection with this Agreement by giving notice to
Emmanuel Babeau (or such other person as Pernod Ricard may notify
Diageo from time to time in accordance with Clause 25).
2.89.2 Pernod Ricard may, at any time, call a meeting of the Supervisory
Committee for any purpose in connection with this Agreement by giving
notice to Shaun Parker (or such other person as Diageo may notify
Pernod Ricard from time to time in accordance with Clause 25).
2.89.3 Notwithstanding the provisions of Clause 25, any notice given in
accordance with Clause 27.3.1 or Clause 27.3.2 may be given in writing
(whether by letter or fax) or by telephone (but not by way of
voicemail message) and shall only be deemed to have been received when
actually received by the individual to whom it is addressed.
46
2.89.4 Wherever practicable, at least five Business Days' notice of each
meeting of the Supervisory Committee shall be given in accordance with
Clause 27.3.1 or 27.3.2. Breach of this Clause 27.3 shall not affect
the validity of any meeting of the Supervisory Committee which has
otherwise been validly convened.
2.89.5 The parties intend that the Supervisory Committee shall meet at least
once every three months.
2.90 PARTICIPATION ARRANGEMENTS
Any one or more representatives of the parties may participate in and
vote at the Supervisory Committee. Meetings may be held by means of a
telephone or any other communication equipment which allows all
persons participating in the meeting to hear each other (and, for the
avoidance of doubt, two or more representatives are not required to be
physically present in the same place in order to constitute a
meeting).
2.91 MEETING, RESPONSIBILITIES AND DUTIES OF SUPERVISORY COMMITTEE
The parties shall procure (so far as each is able to do so) that the
Supervisory Committee shall:
2.91.1 meet within 14 days of a request for such a meeting having been given
(in accordance with Clause 27.3) by one party to the other; and
2.91.2 use its reasonable endeavours to settle any disputes and/or agree the
course of action to be followed in relation to the subject matter of
the meeting.
2.92 RESOLUTIONS OF THE SUPERVISORY COMMITTEE
2.92.1 Resolutions of the Supervisory Committee shall be decided by the
unanimous resolution of all members of the Supervisory Committee
present at the relevant meeting and voting.
2.92.2 A resolution passed by the Supervisory Committee shall be minuted in
English.
2.92.3 A resolution passed by the Supervisory Committee in connection with
resolving any dispute between the parties in connection with the
Agreement shall be binding upon the parties.
DEADLOCK RESOLUTION
2.93 DEADLOCK SITUATION
If a proposal is made by a representative at a meeting of the
Supervisory Committee but is not passed by a resolution of the
Supervisory Committee, either party may give written notice to the
other that it regards a deadlock situation as having arisen ("Deadlock
Notice"). Only one Deadlock Notice may be served in respect of any one
proposal.
2.94 CIRCULATION OF MEMORANDA
Within seven days of the date of service of a Deadlock Notice, Diageo
and Pernod Ricard shall each prepare and send to the other a
memorandum stating its
47
understanding of the disagreement, its position in relation to the
disagreement, its reasons for taking that position and any proposals
for resolving the disagreement.
2.95 TAX EXPERT
Other than in respect of a matter to be determined in accordance with
Clause 7.1, if a deadlock relating to any Tax matter that is the
subject of a Deadlock Notice is not resolved after applying the above
procedure within 21 days from the date of service of the Deadlock
Notice then, if both parties so agree within seven further days, they
shall require an independent third party (the "Independent Expert") to
resolve such matter (acting as expert and not as arbitrator), having
regard to the FIA Implementation Principles or the SOFIA
Implementation Principles (as the case may be) and the other
provisions of this Agreement. The parties shall each be entitled to
make written and oral submissions to the Independent Expert (such oral
submissions being of no longer than 30 minutes each) and he shall be
required to reach a decision as to which submission should be adopted
(but, for the avoidance of doubt, shall not be able to make a
different or compromise decision without the consent of both parties),
within 48 hours of the dispute being referred to him. The decision as
to which submission should be adopted as determined by the Independent
Expert shall be final and binding on the parties.
2.96 REFERRAL TO SENIOR EXECUTIVES
Following the service of a Deadlock Notice, Diageo and Pernod Ricard
shall each use their reasonable endeavours to resolve the
disagreement. If within 14 days from the date of service of a Deadlock
Notice the parties shall have failed to resolve the disagreement, Nick
Rose (or such other executive director of Diageo as Diageo may
nominate) and Laurent Lacassagne (or such other senior executive of
Pernod Ricard as Pernod Ricard may nominate) shall be provided with
copies of all such memoranda and shall as soon as reasonably
practicable meet to discuss the disagreement and use all reasonable
endeavours to resolve it.
2.97 ARBITRATION
If a deadlock relating to any proposal the subject of a Deadlock
Notice is not resolved after applying the procedure set out in Clauses
28.1 to 28.3 within 28 days from the date of service of the Deadlock
Notice then the matter shall be referred to arbitration in accordance
with Clause 29.
ARBITRATION
2.98 ICC RULES
All disputes arising in connection with this Agreement (whether
relating to an alleged breach of the terms of this Agreement or
otherwise) shall be finally settled under the Rules of Arbitration of
the International Chamber of Commerce ("ICC") by three arbitrators
appointed in accordance with those rules. Should the arbitrator
appointed by Diageo and the arbitrator appointed by Pernod Ricard not
agree on the choice of third arbitrator (who shall not be English or
French), this arbitrator shall be designated by the President of the
ICC.
2.99 PLACE OF ARBITRATION
The place of arbitration shall be Geneva, Switzerland.
48
2.100 LANGUAGE OF ARBITRATION
The language of the arbitration shall be English.
CONTRACTS
2.101 ASSIGNMENT OF CONTRACTS
The parties wish to ensure (so far as possible) that each receives the
benefit of, and the ability to perform, any agreements or arrangements
with third parties relating to its respective Acquired Assets
regardless of the legal entity which has the benefit of the relevant
agreement or arrangement. Accordingly, where:
2.101.1 an agreement or arrangement (a "CONTRACT") to which a member of the
Acquired Group (as defined in the Framework and Implementation
Agreement) is a party confers a benefit on that member (the "CONTRACT
PARTY");
2.101.2 the Contract Party is an Affiliate of a party to this Agreement (that
party being the "CONTRACT PARENT" and, where the Contract Party is a
Jointly-owned Entity, the "CONTRACT PARENT" shall mean both Diageo and
Pernod Ricard); and
2.101.3 the other party to this Agreement or any of its Affiliates or any
Jointly-owned Entity (the relevant person(s) being the "BENEFICIARY")
carries on a Business (as defined in the Framework and Implementation
Agreement) and, in order to carry on that Business in the same manner
as it was carried on immediately prior to Closing, requires all or
some of the benefit of the Contract or to be subject to all or some of
the burden of the Contract,
then if:
2.101.4 no consent or agreement of any third party is required to enable the
Beneficiary to perform the Contract (or, in respect of those Contracts
which relate in part only to the relevant Business, the relevant part
thereof) or to enable the Contract Party to transfer the benefit or
burden of that Contract (or the relevant part thereof) to the
Beneficiary, then the Contract Parent shall procure that the Contract
Party shall assign, for no consideration, the benefit (subject to the
burden) of the Contract (or the relevant part thereof) to the
Beneficiary; and
2.101.5 in any other case, the following provisions shall apply:
2.101.5.1 each party shall (each at its own expense) use its
reasonable endeavours to obtain the consent or agreement of
the third party to whatever assignment, transfer or novation
is necessary to enable the Beneficiary to perform such
Contract (or the relevant part thereof) or as the case may
be to transfer the benefit and burden of such Contract (or
the relevant part thereof) to the Beneficiary. Any payment
necessary to procure such consent or agreement shall be
borne by Diageo and Pernod Ricard in the Sharing Proportions
PROVIDED THAT the parties shall use their reasonable
endeavours to minimise the amount of such payment and shall
adopt alternative arrangements if those are economically
more advantageous (taking into account the disruption to the
business caused by adopting such arrangements); and
49
2.101.5.2 until the consent or agreement referred to in Clause
30.1.5.1 is obtained, the parties shall (so far as each is
able to do so) procure that the Beneficiary shall, unless
the relevant Contract prohibits it, perform all the
obligations of the Contract Party under such Contract in
relation to the Business as agent for or sub-contractor to
the Contract Party or, if the relevant Contract does
prohibit the Beneficiary from so acting as agent and
sub-contractor, the Contract Parent shall procure that the
Contract Party shall, at the cost of the Beneficiary, do all
such acts and things as the Beneficiary may reasonably
require to enable due performance of the Contract and to
provide for the Beneficiary the relevant benefits, subject
to the relevant burdens, of the Contract. For this purpose,
it shall not be reasonable to require the Contract Party to
make any payment unless the Beneficiary has first put the
Contract Party in cleared funds sufficient to make such
payment.
2.102 CONTRACT HELD ON TRUST
Until such time as any consent or agreement referred to in Clause
30.1.5 is obtained, the Contract Party shall be deemed to hold the
benefit of the relevant Contract (or the relevant part thereof) on
trust for the Beneficiary absolutely and will account to the
Beneficiary for any sums or any other benefits received by the
Contract Party in relation thereto without any deduction or
withholding of any kind (save as may be required by the law of any
jurisdiction to which the Contract Party is subject).
2.103 THIRD PARTY CONDITIONS
If a third party to a Contract imposes any condition to the novation
or assignment of a Contract or as a term of giving its consent to the
Beneficiary for such novation or assignment, the parties shall
co-operate in good faith with a view to finding a mutually acceptable
means of satisfying the requirements of that third party without
varying (otherwise in any minor terms) the terms of such Contract or
this Agreement relating to the rights and obligations to be assumed by
the Beneficiary.
REMEDIES AND WAIVERS
2.104 DELAY OR OMISSION
Save as otherwise provided in this Agreement, no delay or omission by
any party to this Agreement in exercising any right, power or remedy
provided by law or under this Agreement shall:
2.104.1 affect that right, power or remedy; or
2.104.2 operate as a waiver of it.
2.105 SINGLE OR PARTIAL EXERCISE
The single or partial exercise of any right, power or remedy provided
by law or under this Agreement shall not preclude any other or further
exercise of it or the exercise of any other right, power or remedy.
50
2.106 CUMULATIVE RIGHTS
The rights, powers and remedies provided in this Agreement are
cumulative and not exclusive of any rights, powers and remedies
provided by law.
2.107 DAMAGES NOT AN ADEQUATE REMEDY
Notwithstanding any express remedies provided under this Agreement and
without prejudice to any other right or remedy which any party may
have, each party acknowledges and agrees that damages alone may not be
an adequate remedy for any breach by it of the provisions of this
Agreement, so that in the event of a breach or anticipated breach of
such provisions, the remedies of injunction and/or an order for
specific performance would in appropriate circumstances be available.
2.108 NO THIRD PARTY RIGHTS
The parties to this Agreement do not intend that any term of this
Agreement should be enforceable, by virtue of the Contracts (Rights of
Third Parties) Act 1999, by any person other than Diageo plc and
Pernod Ricard S.A..
NO PARTNERSHIP
Nothing in this Agreement and no action taken by the parties under
this Agreement shall constitute a partnership, association or other
co-operative entity between either of the parties or constitute any
party the agent of any other party for any purpose.
COSTS AND EXPENSES
Each party shall pay its own costs and expenses in relation to the
negotiation, preparation, execution and carrying into effect of this
Agreement except as otherwise expressly provided herein.
COUNTERPARTS
This Agreement may be executed in any number of counterparts, and by
the parties on separate counterparts, but shall not be effective until
each party has executed at least one counterpart. Each counterpart
shall constitute an original of this Agreement, but all the
counterparts shall together constitute but one and the same
instrument.
CHOICE OF GOVERNING LAW
This Agreement is governed by and shall be construed in accordance
with the substantive laws of England.
IN WITNESS of which this Agreement has been executed on the date which first
appears on page 1 of this Agreement.
51
SCHEDULE 1
IDENTIFIED ASSETS
PART A
DIAGEO ASSETS
1 INTELLECTUAL PROPERTY ASSETS RELATING TO BRANDS
All Intellectual Property Assets relating wholly to the Brands set out
in paragraph 1 or 2 of Part A of Schedule 2.
2 INTELLECTUAL PROPERTY ASSETS NOT ALLOCATED UNDER ITEM 1 ABOVE RELATING
TO PRODUCT CATEGORIES
All Intellectual Property Assets that are not referred to in paragraph
1 or paragraph 3 of Part A or Part B of this Schedule 1 and that have
been used wholly in relation to one of the following product
categories and that can be completely separated from other
Intellectual Property Assets:
2.1 rum;
2.2 North American whiskey/whisky; and/or
2.3 wines
3 MISCELLANEOUS INTELLECTUAL PROPERTY ASSETS
3.1 Miscellaneous Patents
PATENT INFORMATION COUNTRY OWNER EXPIRATION DATE RELATED BRAND(S)
------------------ ------- ----- --------------- ----------------
Rotary Turret with U.S.A. Joseph E. Seagram & 8/29/2020 The patent does not
Pedestals and a Method of Sons, Ltd. Waterloo, apply to any brand. in
Controlling Rotation Canada particular
Thereof (Reg. No.
6,398,006)
Adjustable Railing Support U.S.A. Joseph E. Seagram & 11/01/2014 Fenner is exclusive
Post for Conveyor Lines Sons, Ltd. Waterloo, licensee of patent. May
and Method of Use Thereof Canada (now The Seagram relate to all brands.
(Reg. No. 5,492,218) Company Limited).
Assigned to Treat
Venture Holdings.
52
3.2 Miscellaneous Copyrights
DATE OF
CLASS AND CREATION/ DATE RELATED
COPYRIGHT INFORMATION JURISDICTION REG. NO./ DATE OF PUBLICATION BRAND(S)
--------------------- ------------ -------------- -------------- --------
1. LE CANADA HERITAGES ET ESPOIRS Literary Work 301481/ April 23, No date No
Registered to The Seagram Company, Canada 1980 relationship
Ltd., on April 23, 1980. The Seagram with a
Company Limited and Joseph E. Seagram & particular
Sons Ltd. then formed The Seagram brand.
Company Limited. The Certificate of
Amalgamation was filed March 26, 2001.
Assigned to Treat Venture Holdings Ltd.
at Vivendi closing.
2. ALCOHOL FACTS, ALCOHOL FICTIONS Literary & 386905/ No date No
Registered to Joseph E. Seagram & Sons Artistic Work March 13, 1989 relationship
Limited on March 13, 1989. The Seagram Canada with a
Company Limited and Joseph E. Seagram & particular
Sons Ltd. then formed The Seagram brand.
Company Limited. The Certificate of
Amalgamation was filed March 26, 2001.
Assigned to Treat Venture Holdings Ltd.
at Vivendi closing.
3. THE WORLD OF LIQUEURS Literary Work 311140/ No date No
Registered to Joseph E. Seagram & Sons Canada September 9, 1981 relationship
Limited on September 9, 1981. The with a
Seagram Company Limited and Joseph E. particular
Seagram & Sons Ltd. then formed The brand.
Seagram Company Limited. The
Certificate of Amalgamation was filed
March 26, 2001. Assigned to Treat
Venture Holdings Ltd. at Vivendi
closing.
4. THE CANADIAN JOURNEY RIVERS OF Literary Work 300465/ No date No
MEMORY, RIVERS OF DREAMS Canada February 29, 1980 relationship
Registered to The Seagram Company Ltd. with a
on February 29, 1980. The Seagram particular
Company Limited and Joseph E. Seagram & brand.
Sons Ltd. then formed The Seagram
Company Limited. The Certificate of
Amalgamation was filed March 26, 2001.
Assigned to Treat Venture Holdings Ltd.
at Vivendi closing.
53
3.3 Miscellaneous Domain Names
Bottlingdevelopment.com
Changepart.com
Orienters.com
Bd.ca
3.4 Miscellaneous Trademarks
TRADEMARK COUNTRY APP. NO. REG. NO.
--------- ------- -------- --------
ARISTOCRAT Canada 198665 26679
BENGAL Africa 60540 10484
BENGAL Canada 355038 190143
BENGAL Malawi 427/70 B427/70
BENGAL Somali Democratic Republic 739 1504
BENGAL Tiger Label Kenya "" 18174
BENGAL Tiger Label Pakistan 54764 54764
BENGAL TIGER LABEL Sierra Leone "" 8860
BENGAL TIGER LABEL Tanganyika 14192 B14192
BENGAL TIGER LABEL Uganda 12179 12179
CANADA HOUSE Benelux 564831 50051
CANADA HOUSE Canada 197741 135/34603
CANADA HOUSE Italy 458096
CANADA HOUSE Japan 676450
CANADA HOUSE LABEL DESIGN Canada 518528 300528
CANADIAN GRAND RESERVE Canada 282725 149179
CARA MIA Canada 432290 255954
CASA DEL VALLE Chile 336449 556895
CASA DEL VALLE United Kingdom 2061524 2061524
COLONY CLUB Canada 140182 268/57540
CORVETTE United Kingdom 616156
CROCO DILLO MIT GUARANA Label Germany S45159/33WZ 1187099
CROCODILLO United Kingdom 1118254 1118254
CROCODILLO - Device Canada 459622 298674
CROCODILLO - Stylized Letters Canada 459624 290911
CROCODILLO - Word and Bottle Design Canada 459623 287166
CROCODILLO & PICTURE BOTTLE Africa 71085 21018
CROCODILLO & PICTURE BOTTLE Benelux 637265 366556
CROCODILLO & Picture Bottle Denmark 2809/1980 589/1981
CROCODILLO & PICTURE BOTTLE France 568376 1594037
CROCODILLO & PICTURE BOTTLE Germany S35057/33WZ 1012660
CROCODILLO & PICTURE BOTTLE Greece 66812 66812
CROCODILLO & Picture Bottle Ireland, Republic of 98597 98597
CROCODILLO & PICTURE BOTTLE Italy 34757C/80 406634
CROCODILLO & Picture Bottle Liberia "" 1496/126
CROCODILLO & Picture Bottle South Africa 80/8480 80/8480
CROCODILLO & PICTURE BOTTLE Switzerland 3366 P308602
CROCODILLO & PICTURE BOTTLE United Kingdom 1135920 1135920
CROCODILLO (IN VERTICAL SCRIPT) United Kingdom 1139015 1139015
CROCODILLO Character Germany S43862/33WZ 1105330
CROCODILLO CHARACTER United Kingdom 1137278 1137278
CROCODILLO Device Austria AM 5160/89 130.811
CROCODILLO Device Austria AM 5161/89 130.812
CROCODILLO Device Germany S49248 1159829
DEL 800 Chile R426600
DISFRUTE NUESTA CALIDAD CON RESPONSABILIDAD El Salvador 906/94 239
DISFRUTE NUESTRA CALIDAD CON RESPONSABILIDAD Argentina 1506936
DISFRUTE NUESTRA CALIDAD CON RESPONSABILIDAD Argentina 1506937
54
TRADEMARK COUNTRY APP. NO. REG. NO.
--------- ------- -------- --------
DISFRUTE NUESTRA CALIDAD CON RESPONSABILIDAD Argentina 1506938
DISFRUTE NUESTRA CALIDAD CON RESPONSABILIDAD Argentina 1506939
DISFRUTE NUESTRA CALIDAD CON RESPONSABILIDAD Argentina 1506940
DISFRUTE NUESTRA CALIDAD CON RESPONSABILIDAD Argentina 1506975
DISFRUTE NUESTRA CALIDAD CON RESPONSABILIDAD Argentina 1506976
DISFRUTE NUESTRA CALIDAD CON RESPONSABILIDAD Argentina 1506977
DISTILCO Canada 484430 38561
DOUBLE EAGLE Canada 147822 213/46500
DOUBLE L Canada 283989 148330
ENJOY OUR QUALITY WITH RESPONSIBILITY Bahama Islands 16264 16264
ENJOY OUR QUALITY WITH RESPONSIBILITY Trinidad&Tobago 22376
ENJOY OUR QUALITY WITH RESPONSIBILITY - Aruba 94020813 16625
Word Block
ESCORIAL Brazil 6071236
ESCORIAL Fiji 10331 21229
ESCORIAL Netherlands Antilles "" 9674
ESCORIAL Peru 100830 ""
ESCORIAL Venezuela 5177/79 133284F
ESCORIAL - Word Block Letters Colombia 92342640 183249
ESCORT Dominican Republic "" 24967
ESCORT Malaysia 71298 M/71298
ESCORT Thailand 91956 30241/KOR41886
ESCORT Plus Corporate Design Japan 1638089
FIRST EDITION Canada 242712 112455
FIVE CROWN Canada 165375 15/4714
FOUR SQUARE Canada 127799 177/39246
FRASER'S Canada 183241 69/18023
FYNE MIST HIGHLAND WHISKY Canada 247197 114693
GOLD ANCHOR Canada 261886 126/236
GOOF PROOF Canada 295613 153172
GRAND CHENE Benelux 508680
GREAT OAKS Canada 379817 213107
GREEN & GOLD Brazil 6550380
GREEN & GOLD Brazil 820963771
GREEN & GOLD Dominican Republic "" 21952
GREEN & GOLD Peru 119092 69604
GREEN & GOLD Venezuela 6253/90 158776F
HARWOOD Antigua & Barbuda 1581
HARWOOD Argentina 1941877 1565566
HARWOOD Japan 13021996 4108280
HARWOOD Malta 10777 10777
HARWOOD Montserrat 594
HARWOOD Seychelles 278
HARWOOD Turkey 59913/71 130166
HARWOOD Venezuela 5197/85 128485F
HARWOOD in Rectangular Frame Argentina 1030008 1601166
HARWOOD in Rectangular Frame Argentina 1601165
HARWOOD Label Pakistan 57260
HARWOOD'S Bahama Islands 1946
HARWOOD'S Bolivia 20919C 52354A
HARWOOD'S Brazil 805644 6023223
HARWOOD'S Hungary 119063
55
TRADEMARK COUNTRY APP. NO. REG. NO.
--------- ------- -------- --------
HARWOOD'S Paraguay 126062
HARWOOD'S Suriname 7166
HARWOOD'S Tangier 3698 R7381
HARWOOD'S (SCRIPT) Switzerland 381038
HARWOOD'S Label Australia A197730
HOW TO TALK ABOUT ALCOHOL Canada 710186 TMA430177
IT'S ALL IN THE POUR United States of America 76/312878
IZAAK WALTON LABEL United Kingdom 471332
J.G. GOWIE & Design United Kingdom 176279
J.G. GOWIE CO. HL & Design United Kingdom 181194
J.G. GOWIE CO.HL & Design Jamaica 532
JACK BAKER'S SECRET Canada 394867 220687
KING'S TREASURE Canada 18557400 19675
KINKY PINKY Canada 592212 346097
LORD SELKIRK Canada 364908 198615
MACUMBA Brazil 6030319
MACUMBA Brazil 1231/0603039
MACUMBA Costa Rica NONE 85978
MACUMBA Dominican Republic 31012 60903
MACUMBA - Word Block Letters Canada 375547 211494
MAGNA CARTA Hong Kong 1227/1964
MAGNA CARTA United Kingdom 157938
MAGNA CARTA United Kingdom 838186
MAGNA CARTA - Word Block Letters Italy 458728
MAGNA CHARTA United Kingdom 838187
MASTER'S FLAG Brazil 6688870
MASTER'S FLAG Dominican Republic 21945
MICKEY'S Chile R431639
MINI-A-CHEERS Canada 569332 336208
MIRASOL Chile R427543
MONOGRAM Canada 139516 201/44005
NORTH STAR Canada 242258 111611
OLD BEAGLE (label) Chile R431288
OLD COLONEL Canada 123979 169/37714
OLD COLONEL LABEL Canada 157105 257/55302
OLD GLORY Canada 148047 214/46651
PARTING IS SUCH SWEET SORROW United States of America 76/312879
PENABLANCA Chile R428317
PIONEER Canada 145659 212/46304
PIONEER United Kingdom 1119914 1119914
PIONEER Label United Kingdom 448998
PLENTY KIWI - Word Block Letters Italy 34433C/85 714611
PLENTY KIWI label Germany W55670 DD645181
QI XING Device (with Chinese Characters) China 202256
RED SATIN Canada 147305 211/46176
RENOIR Benelux 425162
RENOIR Benelux 433903
RENOIR Benelux 541163
RENOIR International Registration 607831
RESPONSIBILITY SLOGAN - (CR) DISFRUTE Colombia 005017 186074
RESPONSIBILITY SLOGAN - (CR) DISFRUTE Peru 236882 586
RESPONSIBILITY SLOGAN - APRECIE A NOSSA Brazil 816755973
RESPONSIBILITY SLOGAN - DISFRUTE NUESTRA Bolivia 1571
RESPONSIBILITY SLOGAN - DISFRUTE NUESTRA Costa Rica 488
RESPONSIBILITY SLOGAN - DISFRUTE NUESTRA Ecuador 51641 21895
56
TRADEMARK COUNTRY APP. NO. REG. NO.
--------- ------- -------- --------
RESPONSIBILITY SLOGAN - DISFRUTE NUESTRA Guatemala 131594 1642
RESPONSIBILITY SLOGAN - DISFRUTE NUESTRA Honduras 1158/94 65117
RESPONSIBILITY SLOGAN - DISFRUTE NUESTRA Mexico 2499 10788
RESPONSIBILITY SLOGAN - DISFRUTE NUESTRA Nicaragua 9400709 29379CC
RESPONSIBILITY SLOGAN - DISFRUTE NUESTRA Paraguay 01880 174818
RESPONSIBILITY SLOGAN - DISFRUTE NUESTRA Puerto Rico 34069
RESPONSIBILITY SLOGAN - DISFRUTE NUESTRA Panama 070945 70945
CALIDAD
RESPONSIBILITY SLOGAN - SEAGRAM DISFRUTE* Venezuela 3494/94
ROYAL CROWN International Registration 246102
ROYAL MILE United Kingdom "" B820790
ROYAL MILE United States of America 72/139315 741704
RUSKA Canada 406047 228162
SAN MICHEL Brazil 760240736
SAN MICHEL Mexico 215051
SEAGRAM DISFRUTE NUESTRA . . .* Chile 435.074
SEVEN STAR IN CHINESE CHARACTERS China 92015668 632413
THE SPORTSMAN'S CHOICE Canada 163581 0/2381
THOSE WHO APPRECIATE QUALITY ENJOY IT South Africa 9515575 9515575
RESPONSIBLY
THOSE WHO APPRECIATE QUALITY ENJOY IT South Africa 9515575 9515575
RESPONSIBLY
TROPINA Canada 503029 312492
TROPINA (IN SPECIAL FORM) New Zealand 158698 158698
V M Canada 361447 194072
VALENCIA & DESIGN Canada 450671 264842
VAN KAMP Canada 247649 114/789
VICUNA Argentina 2108160 1708562
VICUNA Brazil 820440604 820440604
VICUNA Canada 858980 TMA536364
VICUNA Mexico 334274 624279
VICUNA United States of America 75/406901 ""
VIP Canada 246985 120404
VIZZIO Chile R496095
WHITE WHEAT Canada 156243 257/55210
* The parties may determine to abandon or cancel these registrations.
4. PRODUCTION AND OTHER ASSETS
4.1 Amherstburg, Ontario
4.2 Gimli, Manitoba
4.3 Lasalle, Quebec
4.4 Relay, Maryland
4.5 Carson, California
57
4.7 United States wine facilities (other than Lawrenceburg, Indiana;
Rushville, Indiana; Lawrenceburg, Kentucky)
4.8 All other North American production facilities and warehouses (other
than Lawrenceburg, Indiana; Rushville, Indiana or any facilities in
Mexico) including all offices and laboratories in White Plains, New
York
4.9 All production facilities and warehouses associated with wine Brands
that are Diageo Assets in France
4.10 All production facilities and the Cordesa farm in Venezuela
4.11 All production facilities and warehouses in Korea
4.12 All production facilities and warehouses relating to Don Julio and
certain other brands, which facilities and warehouses passed (directly
or indirectly) to Diageo and/or its Affiliates pursuant to the
purchase agreement between Pernod Ricard, Diageo, Pernod Ricard North
America and Diageo Nederland BV dated 15 May 2002
4.13 Milan, Indiana
5. ART AND ANTIQUES
All art and antiques acquired by Diageo and Pernod Ricard pursuant to
the Vivendi Sale Agreement wholly relating to Diageo Assets.
6. AFTER-ACQUIRED ASSETS OF DIAGEO
6.1 A receivable in the amount of US$1.5 million to be paid by the Bianchi The date of
family in connection with their exercise of a put/call this Agreement
option over the shares of Valentin Bianchi S.A.I.F. The
option premium of $500,000 has already been paid. The US$1.5 million
represents a second tranche of proceeds.
6.2 Dorval, Ontario The date of this
Agreement
6.3 The Saruro Warehouse, Venezuela The date of this
Agreement
6.4 Lease Agreement (No.1) dated October 22, 1996, a Lease Agreement The date of this
(No.2) dated 23/31 December 1996 and a Lease Agreement (No.3) dated Agreement
January 28/29, 1997 entered into by Seagram Holding-und
Handelsgesellschaft mbH regarding the lease of railcars (refrigerated
boxcars) (together, the "Tropicana Lease Agreements") and Accounts
Receivables Purchase Agreement (No.1) dated October 22, 1996, an
Accounts Receivables Purchase Agreement (No.2) dated 23/31 December,
1996 and an Accounts Receivables Purchase Agreement (No.3) dated
January 28/29, 1997 entered into by Seagram Holding-und
Handelsgesellschaft mbH regarding the purchase of certain rights under
the Tropicana Lease Agreements of even dates
58
PART B
PERNOD RICARD ASSETS
1. INTELLECTUAL PROPERTY ASSETS RELATING TO BRANDS
All Intellectual Property Assets relating wholly to the
Brands set out in paragraph 1 or 2 of Part B of Schedule 2.
2. INTELLECTUAL PROPERTY ASSETS RELATING TO PRODUCT CATEGORIES
All Intellectual Property Assets that are not referred to in
paragraph 1 or paragraph 3 of Part A or Part B of this
Schedule 1 and that have been used wholly in relation to one
of the following product categories and that can be
completely separated from other Intellectual Property
Assets;
2.1 Scotch whisky;
2.2 cognac;
2.3 brandy; and/or
2.4 gin
3. MISCELLANEOUS INTELLECTUAL PROPERTY ASSETS
3.1 Miscellaneous Copyrights
DATE OF
CLASS AND CREATION/ DATE RELATED
COPYRIGHT INFORMATION JURISDICTION REG. NO./ DATE OF PUBLICATION BRAND(S)
--------------------- ------------ -------------- -------------- --------
1. SEAGRAM'S THE SPIRIT OF Book (Textual AF: 38425/ (no No date No
HOSPITALITY: A GUIDE TO SUCCESSFUL Work?) date) relationship
ENTERTAINING. United States with a
Joseph E. Seagram & Sons, Ltd. Assigned particular
to Treat Venture Holdings Ltd. at brand.
Vivendi closing.
2. PLAISIRS DE L'HOSPITALITE PAR Book (French AF: 38424/ (no October 30, 1973 No
SEAGRAM: COMMENT REUSSIA SES RECONTRES translation) date) relationship
SOCIALES United States with a
Joseph E. Seagram & Sons, Ltd. Assigned particular
to Treat Venture Holdings Ltd. at brand.
Vivendi closing.
59
DATE OF
CLASS AND CREATION/ DATE RELATED
COPYRIGHT INFORMATION JURISDICTION REG. NO./ DATE OF PUBLICATION BRAND(S)
--------------------- ------------ -------------- -------------- --------
3. LES PLAISIRS DE L'HOSPITALITE PAR Literary & 249882/ No date No
SEAGRAM Artistic Work March 21, 1974 relationship
Registered to Joseph E. Seagram & Sons Canada with a
Limited on March 21, 1974. The Seagram particular
Company Limited and Joseph E. Seagram & brand.
Sons Ltd. then formed The Seagram
Company Limited. The Certificate of
Amalgamation was filed March 26, 2001.
Assigned to Treat Venture Holdings Ltd.
at Vivendi closing.
4. SEAGRAM'S THE SPIRIT OF HOSPITALITY Literary & 249881/ March 21, No date No
- A GUIDE TO SUCCESSFUL ENTERTAINING Artistic Work 1974 relationship
Registered to Joseph E. Seagram & Sons Canada with a
Limited on March 21, 1974. The Seagram particular
Company Limited and Joseph E. Seagram & brand.
Sons Ltd. then formed The Seagram
Company Limited. The Certificate of
Amalgamation was filed March 26, 2001.
Assigned to Treat Venture Holdings Ltd.
at Vivendi closing.
3.3 Miscellaneous Domain Names
None.
60
3.4 Miscellaneous Trademarks
TRADEMARK COUNTRY APP. NO. REG. NO.
--------- ------- -------- --------
ALBALUNA DI CONTRADA VISNA words Italy MI99C008221
AMARETTO RISERVA DELL'AMORINO label Italy 411897
BALBO device International: Benelux, R371480
France, Switzerland
BASTIANI word International MI99C010295
BASTIANI word Italy R369643
BATTINO word International R371482
BIANCA D'UVA words Italy MI98C006759
BLITZ word Italy MI2001C001696
BOOKER'S South Africa 9513408 9513408
BREGANZE word Mexico 357075
BROOMY KNOWE Label United Kingdom 174882
CA DEI FILARI words International 639901
CA DEI FILARI words Italy 655002
CA DEI FILARI words Venezuela 17644-95
CAIPIRA SEAGRAM Brazil 817428828 817428828
CANAIMA Mexico 334100 581320
CANAIMA Peru 110174 64655
CARTA ORO Brazil 3392740
COLUMBIA CLUB Canada 181705 64/16900
CRICKET word Italy MI98C002308
CRICKETER United Kingdom 838659
CRICKETERS United Kingdom 1106464
CRICKETER'S Kenya 47943
CRICKETERS GIN BOTTLE United Kingdom 1033198
CRUDELIA logo Italy MI99C012653
CUBANA Canada 215084 162/41419
DINO DAL POS words Italy MI2000C003703
DUBAC label Italy MI99C012200
ENCORE China 92032237 641349
ENCORE Hong Kong 10201/92 B8826/95
ENCORE Taiwan 81026450 578806
EXCELLENT word Italy 825845
EXE word Italy 825846
FERRERO Brazil 6803881
FERRERO TORINO VERMOUTH label International 2R136504
FERRERO TORINO VERMOUTH label Italy 686813
FERRERO VERMOUTH label U.K. 447404
FERRERO word Italy MI99C012147
GLEN VAT Brazil 4506855
GLEN VAT Dominican Republic "" 21941
GOLDEN DIAMOND Taiwan 8127521 578808
GOLDEN DIAMOND in Chinese Characters Taiwan 81045277 590023
GOLDEN LAKE Brazil 6687113
GOLDEN LAKE Brazil 1231/0668771
GOLDEN LAKE Venezuela 6257/90 158779F
GOLDEN SUPREME Taiwan 8107014 565172
GRAN TORINO Brazil 7033974
GRAN TORINO VERMOUTH SPECIALE International R346804
TIPICO AMARO label
GRAN TORINO words International 2R130921
GRAN-TORINO United Kingdom 925081 B925081
I TRALCI label International 595770
I TRALCI label Italy 585478
ILALA South Africa 962640 962640
JADE Japan 4322150
61
TRADEMARK COUNTRY APP. NO. REG. NO.
--------- ------- -------- --------
JADE Thailand 156370 308029/KOR45986
JAMAICA CLUB Bahama Islands 1655
JAMAICA CLUB Nigeria TP11670 51002
JAMAICA CLUB United Kingdom 698238 698238
KALINKA Canada 343874 191108
KIEV RUS Argentina 1864585 1500320
KIEV RUS Austria AM5850/92 149428
KIEV RUS Azerbaijan
KIEV RUS Benelux 789801 524231
KIEV RUS Brazil 817019383 817019383
KIEV RUS China 93009045 686423
KIEV RUS Dominican Republic 56165
KIEV RUS France 92444673 92444673
KIEV RUS Germany S55620/33WZ 2043462
KIEV RUS Hungary M9206370 140314
KIEV RUS Italy RM92C004548 645049
KIEV RUS Korea, South 9234022 279552
KIEV RUS Poland Z118358 79524
KIEV RUS Spain 1742020 1742020
KIEV RUS Switzerland 8685/19929 406177
KIEV RUS Taiwan 81060169 607988
KIEV RUS Thailand 241628 241628/KOR19090
KIEV RUS Label Design Ukraine 94030940
KING ARTHUR Japan 4292565
KING ARTHUR - Word Block Letters Africa 81868 32198
KING'S PLATE Canada 163600 0/2254
KWELA South Africa 9715635 9715635
LANDY FRERES label Italy 492393
LANDY FRERES logo Italy 411892
LANDY FRERES words Italy 411893
LANDY FRERES words Mexico 502757
LEOPARDO label Italy MI99C010213
LIGUSTRO label Italy 457473
LIGUSTRO word Italy MI99C010294
LINCOLN CLUB Canada 127799 177/39245
MASTERPIECE Japan 13011996 4108279
MELISSE word Italy 644387
MIDNIGHT THE SPIRIT OF THE NIGHT Benelux 447569
MIDNIGHT THE SPIRIT OF THE NIGHT Benelux 447570
MOUNT DISA South Africa 956285 956285
MOUNT DISA United Kingdom 2026468 2026468
MOZART LIQUEUR words Italy 425737
MR. PICKWICK Canada 233563 107794
N DEL 800 COGNAC NAPOLEON (label) Chile R519833
NOTTURNO word International 785442
NOTTURNO word Italy 717627
OLD COURIER United Kingdom 563411
OSLO BREZZA DEL NORD label Italy 425750
OSLO word Italy 492402
PETER MALCOLM Brazil 006087353
PETER MALCOLM Brazil 6087353
PETER MALCOLM Mexico 214064
PETER MALCOLM Panama 15699
PETER MALCOLM Peru 100941 63598
PETER MALCOLM LABEL Fiji 10375 21262
PREMIER CLUB COLLECTION Armenia 950078 2713
PREMIER CLUB COLLECTION Azerbaijan 940769 N980846
PREMIER CLUB COLLECTION Benelux 757631 493123
PREMIER CLUB COLLECTION Czech Republic NONE 172242
PREMIER CLUB COLLECTION Georgia 3565/03 3918
62
TRADEMARK COUNTRY APP. NO. REG. NO.
--------- ------- -------- --------
PREMIER CLUB COLLECTION Indonesia HC010119022 287740
PREMIER CLUB COLLECTION Kazakhstan 26 5164
PREMIER CLUB COLLECTION Korea 27619
PREMIER CLUB COLLECTION Korea, South 9340444 319137
PREMIER CLUB COLLECTION Latvia M9223 M30265
PREMIER CLUB COLLECTION Lithuania ZP559 20029
PREMIER CLUB COLLECTION Macedonia Z198894 03524
PREMIER CLUB COLLECTION Malaysia MA/8550/90 90/08550
PREMIER CLUB COLLECTION Mexico 103579 ""
PREMIER CLUB COLLECTION Moldova 000821 1732
PREMIER CLUB COLLECTION Romania 25281 18266
PREMIER CLUB COLLECTION Russian Federation 158993 116238
PREMIER CLUB COLLECTION Slovak Republic 62321 173752
PREMIER CLUB COLLECTION Slovenia Z9181688 9181688
PREMIER CLUB COLLECTION Thailand 211182 443019/Kor129
PREMIER CLUB COLLECTION Uzbekistan MBGU94012053 5466
PREMIER CLUB COLLECTION Yugoslavia Z1688/91 38393
PREMIER CLUB COLLECTION - Word Australia 548088 548088
Block Letters
PREMIER CLUB COLLECTION - Word Belarus 1577 4821
Block Letters
PREMIER CLUB COLLECTION - Word Bulgaria 20002 20610
Block Letters
PREMIER CLUB COLLECTION - Word Canada 672345 TMA424017
Block Letters
PREMIER CLUB COLLECTION - Word China 91006538 581962
Block Letters
PREMIER CLUB COLLECTION - Word Croatia Z921186A Z921186
Block Letters
PREMIER CLUB COLLECTION - Word Estonia 9200481 13506
Block Letters
PREMIER CLUB COLLECTION - Word Hungary 3072/91 134689
Block Letters
PREMIER CLUB COLLECTION - Word India 581127 ""
Block Letters
PREMIER CLUB COLLECTION - Word Israel 78476 78476
Block Letters
PREMIER CLUB COLLECTION - Word Italy RM91C000019 611107
block Letters
PREMIER CLUB COLLECTION - Word Japan 144047/1990 2532270
Block Letters
PREMIER CLUB COLLECTION - Word Ukraine 92120578 6947
Block Letters
PREMIER CLUB COLLECTION + Korean Korea, South 27619
Characters
PREMIER CLUB COLLECTION w/Seagram Crest Hong Kong 9408702 B11546/1998
Design
PREMIER CLUB COLLECTION w/SEAGRAM S Seal United Kingdom 1453481 1453481
Design
PREMIER CLUB COLLECTION with Seagram Germany S53500/33WZ 2035805
Crest Design
PREMIER CLUB COLLECTION with Seagram Singapore 275/95 275/95
Crest Design
QUINTESSENZA word Italy 687600
R.V. ALLEN 1881 Portugal 140873
RISERVA SAINT HONORE label Italy 412035
SAINT HONORE words Italy 412030
SAMBUCA label *Seagram Italia stated that Italy 473432
this mark is in use
SEAGRAM ESPANA (Commercial Name) Spain 157133 157133
SEAGRAM SYMPHONIA & DESIGN Canada 691629 430584
SEAGRAM'S KIEV RUS Argentina 1868352 1505935
63
TRADEMARK COUNTRY APP. NO. REG. NO.
--------- ------- -------- --------
SEAGRAM'S KIEV RUS Austria AM5849/92 149427
SEAGRAM'S KIEV RUS Azerbaijan
SEAGRAM'S KIEV RUS Benelux 789800 526011
SEAGRAM'S KIEV RUS Brazil 817019375 817019375
SEAGRAM'S KIEV RUS China 93009046 686422
SEAGRAM'S KIEV RUS Dominican Republic 56418
SEAGRAM'S KIEV RUS France 92445695 92445695
SEAGRAM'S KIEV RUS Germany S55621/33WZ 2043463
SEAGRAM'S KIEV RUS Hungary M9300009 140315
SEAGRAM'S KIEV RUS Italy RM92C004549 645050
SEAGRAM'S KIEV RUS Korea, South 9234024 279553
SEAGRAM'S KIEV RUS Mexico 156577 433847
SEAGRAM'S KIEV RUS Poland Z118357 79523
SEAGRAM'S KIEV RUS Switzerland 8684/19927 409146
SEAGRAM'S KIEV RUS Thailand 241629 241629/KOR23255
SEAGRAM'S KIEV RUS Ukraine
SILVER FIZZ Canada 145416 209/45779
SKI Ireland, Republic of 66208
SKI United Kingdom 841391
STILLATA word Italy MI98C006758
TROPICAL JOY words Italy MI98C006761
VICKERS Canada 143567 208/45421
VICKERS' Nigeria TP17523/93/4
VICKERS' Puerto Rico 23822
VICKERS COAT OF ARMS & DESIGN Canada 141482 201/44071
VICKERS LABEL DESIGN Canada 137252 200/43989
ZUPPA INGLESE words Italy 425765
4. PRODUCTION AND OTHER ASSETS
4.1 Lawrenceburg, Indiana
4.2 Rushville, Indiana
4.3 All production facilities and warehouses in the United Kingdom (except
dedicated CAPTAIN MORGAN assets)
4.4 All production facilities and warehouses in Brazil associated with the
Brands which are Pernod Ricard Assets
4.5 All production facilities and warehouses in India
4.6 All production facilities and warehouses in Portugal relating to
Brands which are Pernod Ricard Assets
4.7 All production facilities and warehouses associated with MARTELL
4.8 All production facilities and warehouses in Mexico, excluding those
referred to in paragraph 4.12 of Part A of this Schedule
5. ART AND ANTIQUES
All art and antiques acquired by Diageo and Pernod Ricard pursuant to
the Vivendi Sale Agreement save for any art or antiques wholly
relating to Diageo Assets.
64
6. AFTER-ACQUIRED ASSETS OF PERNOD RICARD
6.1 Atwood Trade Credits The date of this
Agreement
6.2 Receivable relating to the loan made by Seagram do Brasil Industria e The date of this
Comercio Ltda and Maria Candida (also known as the Crown Industria e Agreement
Comercio Ltda loan).
65
SCHEDULE 2
BRANDS AND RELATED ASSETS
Note: It is agreed that, except where otherwise indicated on this Schedule,
sub-brands shall pass as is indicated for the principal Brand of which they form
a part.
PART A
DIAGEO BRANDS AND RELATED ASSETS
1. ASSETS RELATING TO BRANDS
All Acquired Assets (other than shares (or equivalent) in bodies corporate)
relating wholly to the following brands:
1.1 BARTON & GUESTIER
1.2 TRADITION
1.3 BULLEIT BOURBON
1.4 CACIQUE
1.5 CAPTAIN MORGAN
1.6 CHATEAU AND ESTATE AGENCY WINES
1.7 CROWN ROYAL
1.8 CUESTA DEL MADERO
1.9 MUMM (Note: "Mumm" used under licence)
1.10 MUMM CUVEE NAPA (Note: "Mumm" used under licence)
1.11 CUVEE MUMM (Note: "Mumm" used under licence)
1.12 DOMAINE MUMM (Note: "Mumm" used under licence)
1.13 DON JULIO
1.14 CHENTE
1.15 AGAVANA
1.16 TEQUILIER
1.17 TEQUIFRUIT
1.18 MACARENA
1.19 LA LEYENDA
1.20 JULIO GONZALEZ E.
1.21 A LEGENDARY MAN - A LEGENDARY TEQUILA
1.22 UN HOMBRE LEGENDARIO
1.23 DAMASO MENDIOLA
1.24 DON JULIAN, JULIO 1992
1.25 DON JULIO, 1942
1.26 LA TABERNA DE DON JULIO
1.27 MONTEZUMA
1.28 RESERVA DE DON JULIO
1.29 DON JULIO ANEJO
1.30 DON JULIO BLANCO
1.31 DON JULIO REAL
1.32 DON JULIO REPOSADO
1.33 MYERS'S
1.34 GOLD LABEL
1.35 GOLD LABEL (TRELAWNY)
1.36 SAN TELMO
1.37 SEAGRAM'S 5 STAR (Note: "Seagram's" used under licence from
Pernod Ricard)
1.38 SEAGRAM'S 7 CROWN (Note: "Seagram's" used under licence from
Pernod Ricard)
66
1.39 SEAGRAM'S 83 (Note: "Seagram's" used under licence from
Pernod Ricard)
1.40 SEAGRAM'S VO (Note: "Seagram's" used under licence from
Pernod Ricard)
1.41 STERLING VINEYARDS
1.42 THE MONTEREY VINEYARD
1.43 TRES MAGUEYES
1.44 TRES MAGUEYES GRAN RESERVA
1.45 TRES MAGUEYES BLANCO
1.46 TRES MAGUEYES REPOSADO
1.47 TRES MAGUEYES RESERVA DE LA CASA
1.48 WINDSOR PREMIER
1.49 CRILLON
1.50 FREDERIC BASTIAT
1.51 GRAND BLASON
1.52 MONITOR
AFTER-ACQUIRED ASSETS OF DIAGEO
All Acquired Assets (other than shares (or equivalent) in bodies corporate)
relating wholly to the following Brands:
1.53 CITRUS The date of this Agreement
1.54 DINASTIA The date of this Agreement
1.55 DUFRES (except Chile) The date of this Agreement
1.56 GRAN BLASON The date of this Agreement
1.57 JULIUS KAYSER The date of this Agreement
1.58 SAMBA The date of this Agreement
1.59 SECRET The date of this Agreement
67
PART B
PERNOD RICARD BRANDS AND RELATED ASSETS
1. BRANDS
All Acquired Assets (other than shares (or equivalent) in bodies corporate)
relating wholly to the following brands:
1.1 100 PIPERS or ONE HUNDRED PIPERS or HUNDRED PIPERS
1.2 THE BLACK WATCH
1.3 ALDEIA VELHA & NOVA
1.4 BENRIACH
1.5 BLACK JACK
1.6 BLENDERS PRIDE
1.7 BOODLES
1.8 CHIVAS
1.9 CHIVAS REGAL
1.10 DE VALCOURT
1.11 DUNBAR
1.12 GLEN GRANT
1.13 GLEN KEITH
1.14 GLENLIVET
1.15 HERITAGE COLLECTION
1.16 HIGHLAND CLAN
1.17 IMPERIAL BLUE
1.18 JULES ROBIN
1.19 L'OR
1.20 LOCHAN ORA
1.21 LONGMORN
1.22 MACIEIRA
1.23 MARGARITAVILLE
1.24 MARTELL
1.25 CORDON ARGENT
1.26 CORDON BLEU
1.27 CORDON RUBIS
1.28 CORDON SUPREME
1.29 MARTELL & CO.
1.30 MASTER BLEND
1.31 MEDAILLON
1.32 MONTILLA
1.33 MONTILLA CARTA
1.34 NATU NOBILIS
1.35 NOBLIGE
1.36 OAKEN GLOW
1.37 ORLOFF
1.38 PRINCE CHARLIE
1.39 REGENCY
1.40 ROBERT BROWN'S
1.41 ROBIN
1.42 RON CABANA
1.43 ROYAL SALUTE
1.44 ROYAL STAG
1.45 SEAGRAM; SEAGRAM'S
68
1.46 SEAGRAM'S GIN
1.47 SEAGRAM'S GIN AND JUICE
1.48 SEAGRAM'S VODKA
1.49 SOMETHING SPECIAL
1.50 STARS AND STRIPES
1.51 STRATHISLA
1.52 TEQUILA BRANDS (OTHER THAN THOSE IDENTIFIED IN SCHEDULE 2,
PART A, SECTIONS 1.13-1.32 AND 1.43-1.47),
INCLUDING (BUT NOT LIMITED TO)
1.53 CHARROS TEQUILA
1.54 COYOTE
1.55 DON LEONCIO
1.56 LOS INFIELES
1.57 LOS RUIZ
1.58 MANSION HOUSE
1.59 MARIACHI
1.60 MEXIQUILA
1.61 OLMECA
1.62 TESORO DEL SOL
1.63 THE CENTURY OF MALTS
1.64 WILLIAM LONGMORE
1.65 BOSTON CLUB, CAMP, CHATELAIN, CRESCENT, EMBLEM, EVERMORE, NEWS
and TEN DISTILLERIES
1.66 RICK'S
1.67 SEAGRAM'S COOLERS
1.68 SEAGERS
AFTER-ACQUIRED ASSETS OF PERNOD RICARD
All Acquired Assets (other than shares (or equivalent) in bodies corporate)
relating wholly to the following Brands:
1.69 PASSPORT 20 September 2002
1.70 ALMADEN The date of this Agreement
1.71 SUNNY DAYS The date of this Agreement
1.72 BAIA DEI LIMONI The date of this Agreement
1.73 BURNETT'S WHITE SATIN (in Japan) The date of this Agreement
1.74 FORESTIER The date of this Agreement
1.75 MAISON FORESTIER The date of this Agreement
1.76 GOLD BOND The date of this Agreement
1.77 JACQUES CARDIN The date of this Agreement
1.78 LOUIS D'OR The date of this Agreement
1.79 QUEEN ANNE The date of this Agreement
1.80 ROYAL LABEL The date of this Agreement
69
1.81 SAO FRANCISCO The date of this Agreement
1.82 WILSONS The date of this Agreement
1.83 WHITE SWAN The date of this Agreement
1.84 ALEXANDER The date of this Agreement
1.85 NIKOLAI (except Costa Rica) The date of this Agreement
70
SCHEDULE 3
COMPANIES AND ASSETS
PART A
DIAGEO COMPANIES AND ASSETS
All of the Acquired Assets (other than shares or other membership interests in
bodies corporate and those Acquired Assets listed or described in Schedules 1 or
2) owned by the following entities:
1. Barton & Guestier S.A. (France)
C.A. Circulo de Conocedores (Venezuela)
C.A. Cordesa S.A. (Venezuela)
C.A. Distribuidora Chumaceiro CADICH 2000 (Cayman Islands)
C.A. Distribuidora Chumaceiro CADICH Directos (Cayman Islands)
C.A. Seagram de Venezuela (Venezuela)
Captain Morgan Rum Distillers Ltd. (Canada)
Captain Morgan (Bermuda) Ltd. (Bermuda)
Claredon Distillers Limited (Jamaica)
Diageo Ichon Supply Co., Limited (formerly Doosan Seagram Co., Ltd.)
(South Korea)
Diageo Korea Ltd (formerly World Liquor Trading Company) (South Korea)
Distillers Products Sales Corporation (U.S.A.)
Don Julio Agavera S.A. (Mexico)
Jerome Distributors, Inc. (U.S.A.)
JES (U.S.A.)
Kamina Trading Ltd. (Venezuela)
Licorerias Unidas, S.A. (Venezuela)
Myers Rum Company Limited (Bahamas)
Myers Rum Company (Jamaica) Limited (Jamaica)
'N' Productes, S.A. (Andorra)
Seagram-Baric (U.S.A.)
Seagram (Cayman) Ltd. (Cayman Islands)
Seagram de Argentina S.A. (Argentina)
Seagram Export Foreign Sales Corporation Limited (Jamaica)
Seagram Export Sales Co., Inc. (U.S.A.)
Seagram Korea B.V. (Netherlands)
Seagram Nevada Corporation (U.S.A.)
Seagram United Kingdom Limited (U.K.)
Servicios Agavera, S.A. (Mexico)
Sterling Vineyards, Inc. (U.S.A.)
Tequila Don Julio S.A. de C.V. (Mexico)
Tequila Don Julio Servicios S.A. de C.V. (Mexico)
Tomo Compania Anonima (Venezuela)
Trelawny Estates Limited (Jamaica)
Valentin Bianchi S.A.I.F. (Argentina)
Vignobles Internationaux S.A. (France)
72
PART B
PERNOD RICARD COMPANIES AND ASSETS
All of the Acquired Assets (other than shares or other membership interests in
bodies corporate and those Acquired Assets listed or described in Schedules 1 or
2) owned by the following entities:
1. Alexander McLaren and Company Limited (U.K.)
2. Associated Liquor Distributors (EM) Sdn. Bhd. (Sabah) (Malaysia)
Associated Liquor Distributors (Hong Kong) Limited (Hong Kong)
Associated Liquor Distributors Sdn. Bhd. (Malaysia)
Associated Liquor Distributors (Thailand) Ltd. (Thailand)
ALD Sales Company Ltd (Thailand)
Augier Robin Briand & Co. (France)
Barton & Guestier Limited (U.K.)
Braes of Glenlivet Ltd. (U.K.)
Braeval Limited (U.K.)
Caldbeck Phipson & Company Limited (U.K.)
Caledonia Glenlivet Water Company Limited (U.K.)
Canadian Distillers Ltd. (Canada)
Caperdonich Distillery Company Limited (U.K.)
Captain Morgan Rum Distillers Limited (U.K.)
Cente S.A. (Spain)
Chivas 2000 Unlimited (U.K.)
Chivas Brothers Limited (U.K.)
Chivas Brothers (Aberdeen) Limited (U.K.)
Continental Shelf 99 (U.K.)
Craigduff Distillers Limited (U.K.)
Crownsouth Limited (U.K.)
D. Rintoul & Company Limited (U.K.)
deVille & Co. Limited (U.K.)
Envoy Wines Limited (U.K.)
Fragrances Limited (Hong Kong)
George & J.G. Smith Limited (U.K.)
GeomorEx Limited (formerly George Morton Limited) (U.K.)
George Roe and Company Limited (U.K.)
Glen Grant Distilleries Limited (U.K.)
Glen Grant Whisky Company Limited (U.K.)
Glen Keith Distillery Company Limited (U.K.)
The Glenlivet & Glen Grant Agencies Limited (U.K.)
The Glenlivet Distillers Limited (U.K.)
The Glenlivet Mineral Water Company Limited (U.K.)
Glenlivet Spring Water Limited (U.K.)
The Glenlivet Whisky Company Limited (U.K.)
The Highland Bonding Company Limited (U.K.)
Hill Thomson & Co. Limited (U.K.)
Hudson's Bay Company Edinburgh Limited (U.K.)
J&F Martell Diffusion Hong Kong Limited (Hong Kong)
J&F Martell, Inc. (U.S.A)
J. & J. Grant, Glen Grant Limited (U.K.)
James Keith Limited (U.K.)
J.B. Sheriff & Company Limited (U.K.)
JDC Services, S.A. de C.V.
JDC. S.A, de C.V. (Mexico)
JFP Partnership (Hong Kong)
J.M. Tulloch & Company Limited (U.K.)
72
John Dunbar & Company Ltd. (U.K.)
Joseph E. Seagram & Sons (Scotland) Limited (U.K.)
The Keith Bonding Company Limited (U.K.)
Kirin-Seagram Limited (Japan)
Lawson & Smith Limited (U.K.)
The Longmorn Distilleries Limited (U.K.)
Martell & Co. (France)
Martell & Cie (South Africa) (Pty) Ltd. (South Africa)
Martell Far East Trading Limited (Hong Kong)
Martell South East Asia Limited (Hong Kong)
Meekdean Limited (U.K.)
Moray Bonding Company Limited (U.K.)
Morgan Wine & Spirit Co. Limited (U.K.)
Murrayfield Vatting Company Limited (U.K.)
Myers Rum Limited (U.K.)
Oreco (France)
Oceanic Distilleries Ltd. (India)
Pacific Shelf 768 Limited (U.K.)
The Paisley Bonding Company Limited (U.K.)
Perennial Brands Limited (U.K.)
Prestige Vintners Limited (Hong Kong)
Revico (France)
Robert Brown Limited (U.K.)
Rowett, Legge & Co. Ltd. (U.K.)
SCI Paradis Prat (France)
Seafield Blending Company Limited (U.K.)
Seagram do Brasil Industria a Comercio Ltda. (Brazil)
Seagram (China) Ltd. (Canada)
Seagram France Distribution (France)
Seagram Holding Limited (Thailand)
Seagram India Limited (India)
Seagram Ireland Limited (U.K.)
Seagram Manufacturing Limited (India)
Seagram de Margarita
Seagram Martell Duty Free Limited (Hong Kong)
Seagram de Mexico S.A . de C.V. (Mexico)
Seagram Research Limited (U.K.)
Seagram Romania (Romania)
Seagram Services S.A. de C.V. (Mexico)
Seagram (Thailand) Limited (Thailand)
Seamart Limited (Hong Kong)
Shanghai Seagram Limited (China)
Shanghai Yi Jia International Trading Company Limited (China)
Sheriff & Company (Glasgow) Limited (U.K.)
Sherriff & Company (Jamaica) Ltd. (Jamaica)
Sheriff's Scotch Malt Company (U.K.)
Sica U.V.P.C. (France)
Sir Robert Burnett & Co. Limited (U.K.)
Societe des Domaines Viticoles Martell S.A. (France)
Stewart Cameron & Son Limited (U.K.)
Strathisla Distillery Company Limited (U.K.)
Tianjin Seagram International Trading Limited (China)
Tianjin Seagram Limited (China)
Turner & Nicol Limited (U.K.)
Voyglow Limited (U.K.)
73
Wm Chas. Anderson & Co. Limited (U.K.)
William Longmore & Company Limited (U.K.)
WilwalkEx Limited (formerly William Walker &. Company Limited) (U.K.)
WoodcoEx Limited (formerly Wood and Company Limited) (U.K.)
74
SCHEDULE 4
IDENTIFIED LIABILITIES
OUTSTANDING SEAGRAM LITIGATION: SHARED LIABILITIES
RELEVANT
TRANSACTION BRANDS INSURANCE/ CONDUCTING
TITLE OF LITIGATION PARTY/IES INVOLVED STATUS INDEMNITY OUTSIDE COUNSEL PARTY/COMMENTS
- ------------------- ----------- -------- ------ ---------- --------------- --------------
UNITED STATES
[US lawyers] Seagram Pending personal Brooks defending William M. Nelson Diageo
dispute/ Beverage injury claim. claim pursuant to Senior V.P., (Country
Canadian company Company contractual General Counsel Manager
Aconcia v Brooks (Defendant) indemnity Dr. Pepper/Seven for U.S.)
Beverage and provision. Up Bottling Group
Seagram Beverage 5950 Sherry Lane,
Company Suite 500
Dallas, TX 75225
Phone:
001-214-530-5000
Fax:
001-214-530-5036
U.S. Administrative Joseph E. Pending Environmental Diageo
Proceeding Seagram & Protection Agency (Country
U.S. EPA CERCLA Sons, Inc. investigation Manager
Investigation regarding a former JES for U.S.)
against Joseph E. warehouse in Ohio.
Seagram & Sons,
Inc. and Seagram
Spirits-n-Wine Group
U.S dispute Joseph E. Action commenced on Diageo
Paul Criscuolo v. Seagram & December 21, 2002, in (Country
Vivendi Universal, Sons, Inc. federal court (SDNY). Manager
Pernod Ricard, Criscuolo was an for U.S.)
Diageo and Joseph employee of JES prior
E. Seagram & Sons, to the closing. He
Inc. resigned prior to the
closing. He alleges
that he was
constructively
discharged (i.e., that
he was not offered a
comparable position,
although he was
offered and turned
down a position with
PR).
US dispute Joseph E. Threatened employee Diageo
JES employee Seagram & claim for severance (Country
severance claim Sons, Inc. (no claim filed yet). Manager
for U.S.)
75
RELEVANT
TRANSACTION BRANDS INSURANCE/ CONDUCTING
TITLE OF LITIGATION PARTY/IES INVOLVED STATUS INDEMNITY OUTSIDE COUNSEL PARTY/COMMENTS
- ------------------- ----------- -------- ------ ---------- --------------- --------------
[US lawyers] dispute UNCLEAR Pending personal Seagram's insurer Terence Austgen Diageo
Boles v South Bend (Defendant) injury claim, with is defending 9245 Calumet (Country
Discount Liquors, settlement offer claims. Avenue, Suite 200 Manager
et al. outstanding. Munster, Indiana for U.S.)
46321
Phone:
001-219-836-0200
Fax:
001-219-836-2544
Canadian company Joseph E Diageo Sales Agent (Mosaiq) Mark Robilotti Diageo
Claims of Canadian Seagram Ltd. keep claims that JES Ltd. Simpson Thacher & (Country
Sales Agents (potential brands, illegally terminated Bartlett Manager
defendant) Pernod its agreement with 425 Lexington for U.S.)
keep agent, and seeks to Avenue
brands have party acquiring New York, NY 10017
and Mumm trademarks assume Phone:
Seagram JES's obligations. 001-212-455-7325
Venture Fax:
brands 001-212-455-2502
US dispute/Canadian The Seagram Patents Pending patent Ronald Santucci, Diageo
and US companies Company Ltd. appear infringement claims Esq. (Country
(DCA2) and Joseph E. to have relating, among other Pitney Hardin Kipp Manager
Lemelson Medical, Seagram & been things, to certain & Szuch, LLP for U.S.)
Education & Sons, Inc. used in techniques used in the 711 Third Avenue
Research (Defendant) multiple filling and scaling of New York, NY
Foundation, L.P. v Seagram containers. Stay 10017-4059
the Seller, et al facilities granted pending Phone: 212-687-6000
prior to outcome of parallel Fax: 212-682-3485
VU litigation with
Closing. Symbol., a district
court action not
expected to end until
mid-2003. Settlement
discussions on hold in
light of merger and
divestiture.
US dispute/US JES Mixed Pending accounts Diageo
company brands receivable claim (JES (Country
JES v. Global is plaintiff) Manager
In-flight Systems for U.S.)
Threatened Claim/US JES Seagram Threatened claim for Diageo
company Mixers termination of (Country
Jamaica Beverage distributorship Manager
Company v. JES (distribution for U.S.)
agreement not
transferred to
purchaser of Seagram
Mixers).
76
RELEVANT
TRANSACTION BRANDS INSURANCE/ CONDUCTING
TITLE OF LITIGATION PARTY/IES INVOLVED STATUS INDEMNITY OUTSIDE COUNSEL PARTY/COMMENTS
- ------------------- ----------- -------- ------ ---------- --------------- --------------
US dispute/US Joseph E. Patent Pending patent JES's attempt to Ronald Santucci, Diageo
company (NDTX) Seagram & at issue infringement claims enter into a joint Esq. (Country
North American Sons, Inc. affected against all defendants indemnity Pitney Hardin Kipp Manager
Container, Inc. v (Defendant) Passport, relating to the use of agreement with all & Szuch, LLP for U.S).
Plastipak Four blow-molded plastic suppliers has been 711 Third Ave.,
Packaging, Inc., et Roses, bottles made from rejected by at New York, NY
al. (including Canadian oriental thermoplastic least one 10017-4059
Joseph E. Seagram & Hunter, materials. JES supplier. JES has Phone: 212-687-6000
Sons, Inc.) Mount cross-claimed against filed cross-claims Fax: 212-682-3485
Royal its bottle suppliers. for
Light, Settlement proposal indemnification and
and & under consideration by against certain
7Crown. JES. NAC's claims vendors. Pat McGowan Esq.
against Seagram were Akin, Gump,
dismissed subject to Straus, Hauer &
an agreement between Feld LLP
the parties. Seagram 1700 Pacific Ave.,
appears to have Suite 4100
settled with two Dallas, TX
vendors, although 75201-4675
neither party has been Phone: 214-969-2800
formally dismissed. Fax: 214-969-4343
All of the other
cross-claims are still
pending.
EUROPE
Portuguese dispute Sandeman & Ca, Sandeman - The Sandeman buyer has Under the Sandeman Sandeman & Ca Sandeman Buyer
Quinto do Casal e S.A. Quinto do recently notified SPA, Diageo and Contact: with
Confradeiro v. (Defendant) Confradeiro Diageo and Pernod that Pernod Ricard Sara Gomes indemnification
Sandeman & ca. S.A. mark Quinta do Casal e agreed to from Diageo and
Confradeiro is indemnify the Local counsel Pernod Ricard.
pursuing a claim to Sandeman buyer handling the
the Quinta do against the costs matter:
Confradeiro trademark and other expenses Dr. Vitor Refega
(Reg. No. 192046). of settling this Fernandes
matter. J. Pereira da Cruz
Rua Vitor Cordon 14
1249-102, Lisbon,
Portugal
Phone: 35 121 347
5020
77
RELEVANT
TRANSACTION BRANDS INSURANCE/ CONDUCTING
TITLE OF LITIGATION PARTY/IES INVOLVED STATUS INDEMNITY OUTSIDE COUNSEL PARTY/COMMENTS
- ------------------- ----------- -------- ------ ---------- --------------- --------------
Portugal ExSande Vivendi N/A Vivendi request for Tomas Va Pinto, Pernod Ricard
Tax Guarantees indemnity indemnification in Morais Leitao and Diageo
claim notice connection with the
dated November commencement of a tax
14, 2002, examination of ExSande
against Diageo by the Portuguese tax
plc and Pernod authority relating to
Ricard S.A. excise duties and VAT
of Sandeman
Austrian dispute/ Seagram Austria Employment dispute by Schonherr Barfuss Diageo
German company (Defendant) a former manager. Torggler & Partner (Country
Schaller v Employee is (Dr. Thomas Wenger) Manager
Seagram Austria represented by Phone: for Germany).
Grieser, Gerlach, 011-43-1-534-37-0
Gahleitner. Fax:
011-43-1-533-25-21
EU and French The House of Armada House of Brian March Sandeman Buyer
dispute/UK company Seagram UK Seagram/Portugal Wildbore & Gibbons with
L'Armada De La Limited Venture Limited Wildbore House indemnification
Liberte v The (Defendant) withdrew this 361 Liverpool Road from Diageo and
House of Seagram application (no. London N1 1NL, UK Pernod Ricard.
Limited 001626191) on or Phone:
shortly after 28 May 44-207-607-7312
2002. Fax:
44-207-607-9062
EU and Portuguese The House of Armada House of Brian March Sandeman Buyer
dispute/UK company Seagram Limited Seagram/Portugal Wildbore & Gibbons with
C. Da Silva (Defendant) Venture Limited Wildbore House indemnification
(Vinhos), S.A. v withdrew this 361 Liverpool Road from Diageo and
The House of application (no. London N1 1NL, UK Pernod Ricard.
Seagram Limited 001626191) on or Phone:
shortly after 28 May 44-207-607-7312
2002. Fax:
44-207-607-9062
Note: Relates to same
CTM application as
preceding matter.
Spain Seagram Spain N/A Pending litigations N/A Diageo
Preferred relating to preferred (Country
wholesalers claims wholesalers. Manager
1) Becerra y for Spain)
Olmedo, S.A.
2) Telelicor
78
RELEVANT
TRANSACTION BRANDS INSURANCE/ CONDUCTING
TITLE OF LITIGATION PARTY/IES INVOLVED STATUS INDEMNITY OUTSIDE COUNSEL PARTY/COMMENTS
- ------------------- ----------- -------- ------ ---------- --------------- --------------
Spain Seagram Spain N/A Ex-Seagram distributor. N/A Diageo
Distributor claim The distribution (Country
by Cotolosa relationship terminated Manager
in 1996. The former for Spain)
distributor is claiming
an indemnity to offset
any damages caused by
the alleged unilateral
interruption of the
commercial relationship.
Belgian Schreurs, N/A No details available. Allen & Overy Diageo
dispute/Belgian Leurs, Threatened (Country
company Corstjens & litigation. Lawyers Manager
Olivier. have temporarily for Belgium)
Employee litigation ceased work
on this case until
further information
becomes available.
Belgian Seagram N/A Diageo
dispute/Belgian Belgium NV (Country
company Manager
for Belgium)
Purdy Boutique v.
Seagram Belgium NV
UK Seagram United Claims from former Diageo
Seagram United Kingdom Limited customers in respect (Manager of
Kingdom Limited of invoices they claim Seagram UK)
small claims they have not received
stock for.
LATIN AMERICA
[US (Defendant) All Threatened RICO Diageo is Managed jointly
Lawyers][Colombian] Brands litigation related to represented by by Pernod
dispute allegations that Walfrido Martinez Ricard and
Claims of Colombia Seagram smuggled goods of Hunton & Diageo
Governors into Colombia and EC Williams in Florida
to avoid payment of
taxes.
Argentinian Seagram de Four Pending opposition by Santiago R. Diageo
dispute/Argentinian Argentina S.A. Seasons Seagram to O'Connor, Esq. (Country
company (Claimant) application. Marval, O'Farrell Manager
Seagram de Applicant not yet & Mairal for Argentina)
Argentina S.A. v. notified of opposition Phone:
Cabrales S.A. by Seagram. 54-11-431-00100
Fax:
54-11-431-00200
E-mail:
soc@marval.com.ar
79
RELEVANT
TRANSACTION BRANDS INSURANCE/ CONDUCTING
TITLE OF LITIGATION PARTY/IES INVOLVED STATUS INDEMNITY OUTSIDE COUNSEL PARTY/COMMENTS
- ------------------- ----------- -------- ------ ---------- --------------- --------------
Venezuelan C.A. Seagram Seagram de Venezuela Local counsel: Diageo
disputes/ de Venezuela, has offered to settle Moritz Eiris (Country
Venezuelan company C.A. 2 of the claims. Phone: Manager
1) Maritza Gamboa Distribuidory 011-58-212-201-7158 for Venezuela)
v C.A. Seagram de Chumaceiro.
Venezuela;
2) Gian Carlos
Melchionna E. Juan
Luis Elvira
Rodriguez v C.A.
Distribuidora
Chumaceiro;
3) Alejandro
Bouquet Guerra y
Aniello de Vita
Canabal, Eisig
Martinez Moira
Cristina, C.A.
Seagram de
Venezuela and
Moritz J Eiris
Bonilla;
Argentina employee Seagram de Plaintiffs were Iturralde & Diageo
actions: Argentina employees of Kepner Asociados (Country
(1) Tapia S.A. who used to Buenos Aires Manager
(2) Micelli perform replacement J.F. Kennedy 2842 for Argentina)
activities for Seagram PB C
de Argentina. Tel.: 5411 4771 1037
Replacement activities Fax: 5411 4771 0830
are restocking shelves
of supermarkets. The
lawsuit is against
both Kepner and
Seagram de Argentina.
The case is still in
the trial stage of
litigation. A new
hearing is scheduled
for December 5, 2002.
Labor relationship
between Tapia and
Kepner ended on
April 26, 2002, and
labor relationship
between Micieli
and Kepner ended on
April 29, 2002.
80
RELEVANT
TRANSACTION BRANDS INSURANCE/ CONDUCTING
TITLE OF LITIGATION PARTY/IES INVOLVED STATUS INDEMNITY OUTSIDE COUNSEL PARTY/COMMENTS
- ------------------- ----------- -------- ------ ---------- --------------- --------------
Argentina action Seagram de Plaintiff is a former Iturralde & Diageo
Fuentes vs. Seagram Argentina distributor. The Asociados (Country
de Argentina distribution Buenos Aires Manager
arrangement ended in J.F. Kennedy 2842 for Argentina)
May 2002. The term of PB C
the agreement was Tel.: 5411 4771 1037
intended to expire in Fax: 5411 4771 0830
February 2003 but was
terminated early by
the company due to
irregularities in the
activities performed
by Fuentes. Claim is
for wrongful
termination. Claim is
for commissions for
the sale of the
products, among other
items. Case is in
pre-trial stage of
litigation. Evidence
has not been produced
yet.
Argentina action Seagram de Plaintiffs was an Iturralde & Diageo
Gomez v. Seagram de Argentina employee of Kepner Asociados (Country
Argentina S.A. who used to Buenos Aires Manager
perform replacement J.F. Kennedy 2842 for Argentina)
activities for Seagram PB C
de Argentina. The Tel.:
lawsuit is against 5411 4771 1037 1037
both Kepner and Fax: 5411 4771 0830
Seagram de
Argentina. The case
is still in the trial
stage of litigation.
A new hearing is
scheduled for
December 5, 2002.
Argentina action Seagram de Iturralde & Diageo
Galindez v. Seagram Argentina Asociados (Country
de Argentina Buenos Aires Manager
J.F. Kennedy 2842 for Argentina)
PB C
Tel.: 5411 4771 1037
Fax: 5411 4771 0830
Argentina action Seagram de Iturralde & Diageo
Ingenio Aguilares Argentina Asociados (Country
v. Seagram de Buenos Aires Manager
Argentina J.F. Kennedy 2842 for Argentina
PB C
Tel.: 5411 4771 1037
Fax: 5411 4771 0830
Argentina action Seagram de Iturralde & Diageo
La Estrella v. Argentina Asociados (Country
Seagram de Argentina Buenos Aires Manager
J.F. Kennedy 2842 for Argentina)
PB C
Tel.: 5411 4771 1037
Fax: 5411 4771 0830
81
RELEVANT
TRANSACTION BRANDS INSURANCE/ CONDUCTING
TITLE OF LITIGATION PARTY/IES INVOLVED STATUS INDEMNITY OUTSIDE COUNSEL PARTY/COMMENTS
- ------------------- ----------- -------- ------ ---------- --------------- --------------
Argentina action, Seagram de VICUNA Opposition Santiago R. Diageo
Argentina company Argentina S.A. proceeding. Seagram O'Connor (Country
Seagram de (Opposer) de Argentina opposed Marval, O'Farrell Manager
Argentina S.A. v. Miguel Angel & Mairal for Argentina)
Miguel Angel Ricchiardi's Tel:
Ricchiardi application for 54 11 431 00100
ESTANCIA LA VICUNITA, Fax: 54 11 431
Ser. No. 2.376.335, in 00200
Class 33, based on its Email:
registration for soc@marval.com.ar
VICUNA, Ar. Reg. No.
1708562.
Chilean action, Seagram de N/A Case filed by Seagram Contact: Diageo
Chilean company Chile de Chile against Gonzalo Jimenez (Country
Seagram de Chile, debtor. The debtor Cariola, Diez, Manager
Comercial Limitada was summoned to Perez-Cotapos & for Chile)
v. Luis Garcia acknowledge the debt Cia, Ltda.
Carvajal but he did not appear Avda. Andres Bello
before the court. The 2711, piso 19, Las
plaintiff can now Condes,
proceed with an Santiago, Chile
"execution claim". Tel: (56-2) 368-3573
Fax: (56-2) 360-4030
gjimenez@cariola.cl
Chilean action, Seagram de 2 actions against same Contact: Diageo
Chilean company Chile defendant for bad Gonzalo Jimenez (Country
Seagram de Chile, checks. (1) Claim to Cariola, Diez, Manager
Comercial Limitada be served upon the Perez-Cotapos & for Chile)
v. Patricio Jara defendant, a debtor; Cia, Ltda.
Palma (2) claim to be served Avda. Andres Bello
upon the defendant. 2711, piso 19, Las
Condes,
Santiago, Chile
Tel: (56-2) 368-3573
Fax: (56-2) 360-4030
gjimenez@cariola.cl
Chilean action, Seagram de Claim against debtor. Contact: Diageo
Chilean company Chile Claim to be served Gonzalo Jimenez (Country
Seagram de Chile, upon the defendant. Cariola, Diez, Manager
Comercial Limitada Perez-Cotapos & for Chile)
v. Claudia Cia, Ltda.
Collances Vidal Avda. Andres Bello
2711, piso 19, Las
Condes,
Santiago, Chile
Tel: (56-2) 368-3573
Fax: (56-2) 360-4030
gjimenez@cariola.cl
82
RELEVANT
TRANSACTION BRANDS INSURANCE/ CONDUCTING
TITLE OF LITIGATION PARTY/IES INVOLVED STATUS INDEMNITY OUTSIDE COUNSEL PARTY/COMMENTS
- ------------------- ----------- -------- ------ ---------- --------------- --------------
Chilean action, Seagram de Claim against debtor. Contact: Diageo
Chilean company Chile Claim to be served Gonzalo Jimenez (Country
Seagram de Chile, upon the defendant. Cariola, Diez, Manager
Comercial Limitada Perez-Cotapos & for Chile)
v. Blanca Edilia Cia, Ltda.
Lara Montecino Avda. Andres Bello
2711, piso 19, Las
Condes,
Santiago, Chile
Tel: (56-2)
368-3573
Fax: (56-2)
360-4030
gjimenez@cariola.cl
Chilean action, Seagram de Claim against debtor. Contact: Diageo
Chilean company Chile The plaintiff can now Gonzalo Jimenez (Country
Seagram de Chile, proceed with an Cariola, Diez, Manager
Comercial Limitada "execution claim". Perez-Cotapos & for Chile)
v. Patricio Jara Cia, Ltda.
Palma and Avda. Andres Bello
Productora 2711, piso 19, Las
Megaeventors Ltda. Condes,
Santiago, Chile
Tel: (56-2)
368-3573
Fax: (56-2)
360-4030
gjimenez@cariola.cl
Chilean action, Seagram de Claim against debtor. Contact: Diageo
Chilean company Chile The next step is to Gonzalo Jimenez (Country
Seagram de Chile, ask the court to Cariola, Diez, Manager
Comercial Limitada provide police Perez-Cotapos & for Chile)
v. Tupper y Moreno assistance to proceed Cia, Ltda.
Ltda. with the seizure of Avda. Andres Bello
assets. 2711, piso 19, Las
Condes,
Santiago, Chile
Tel: (56-2)
368-3573
Fax: (56-2)
360-4030
gjimenez@cariola.cl
83
RELEVANT
TRANSACTION BRANDS INSURANCE/ CONDUCTING
TITLE OF LITIGATION PARTY/IES INVOLVED STATUS INDEMNITY OUTSIDE COUNSEL PARTY/COMMENTS
- ------------------- ----------- -------- ------ ---------- --------------- --------------
Chilean action, Seagram de Claim against debtor. Contact: Diageo
Chilean company Chile The proceeding is Gonzalo Jimenez (Country
Seagram de Chile, currently suspended Cariola, Diez, Manager
Comercial Limitada because the debtor is Perez-Cotapos & for Chile)
v. Andres Vidal negotiating new credit Cia, Ltda.
conditions. Avda. Andres Bello
2711, piso 19, Las
Condes,
Santiago, Chile
Tel: (56-2)
368-3573
Fax: (56-2)
360-4030
gjimenez@cariola.cl
Chilean action, Seagram de Mixed Claim against debtor. Contact: Diageo
Chilean company Chile The execution claim is Gonzalo Jimenez (Country
Seagram de Chile, currently in progress. Cariola, Diez, Manager
Comercial Limitada Perez-Cotapos & for Chile)
v. Cecilia Vasquez Cia, Ltda.
San Martin Avda. Andres Bello
2711, piso 19, Las
Condes,
Santiago, Chile
Tel: (56-2)
368-3573
Fax: (56-2)
360-4030
gjimenez@cariola.cl
Chilean action, Seagram de Mixed Claim against debtor. Contact: Diageo
Chilean company Chile The execution claim is Gonzalo Jimenez (Country
Seagram de Chile, in progress. Cariola, Diez, Manager
Comercial Limitada Perez-Cotapos & for Chile)
v. Gastronomica El Cia, Ltda.
Castillo S.A. Avda. Andres Bello
2711, piso 19, Las
Condes,
Santiago, Chile
Tel: (56-2)
368-3573
Fax: (56-2)
360-4030
gjimenez@cariola.cl
84
RELEVANT
TRANSACTION BRANDS INSURANCE/ CONDUCTING
TITLE OF LITIGATION PARTY/IES INVOLVED STATUS INDEMNITY OUTSIDE COUNSEL PARTY/COMMENTS
- ------------------- ----------- -------- ------ ---------- --------------- --------------
Chilean action, Seagram de Claim against debtor. Contact: Diageo
Chilean company Chile The execution claim is Gonzalo Jimenez (Country
Seagram de Chile, in progress. The next Cariola, Diez, Manager
Comercial Limitada step is to petition Perez-Cotapos & for Chile)
v. Cristian Barra the court for police Cia, Ltda.
Zambra assistance to proceed Avda. Andres Bello
with the seizure of 2711, piso 19, Las
assets. Condes,
Santiago, Chile
Tel: (56-2)
368-3573
Fax: (56-2)
360-4030
gjimenez@cariola.cl
Chilean action, Seagram de Criminal action Contact: Diageo
Chilean company Chile against debtor. The Gonzalo Jimenez (Country
Seagram de Chile, investigation is still Cariola, Diez, Manager
Comercial Limitada pending. Perez-Cotapos & for Chile)
v. Pedro Ernesto Cia, Ltda.
Concha Sandoval Avda. Andres Bello
2711, piso 19, Las
Condes,
Santiago, Chile
Tel: (56-2)
368-3573
Fax: (56-2)
360-4030
gjimenez@cariola.cl
Chilean action, Seagram de Claim not yet filed. Contact: Diageo
Chilean company Chile Civil or criminal Gonzalo Jimenez (Country
Seagram de Chile, claim to be filed. Cariola, Diez, Manager
Comercial Limitada Perez-Cotapos & for Chile)
v. Supermercado Cia, Ltda.
Kamadi Ltda. Avda. Andres Bello
2711, piso 19, Las
Condes,
Santiago, Chile
Tel: (56-2)
368-3573
Fax: (56-2)
360-4030
gjimenez@cariola.cl
85
RELEVANT
TRANSACTION BRANDS INSURANCE/ CONDUCTING
TITLE OF LITIGATION PARTY/IES INVOLVED STATUS INDEMNITY OUTSIDE COUNSEL PARTY/COMMENTS
- ------------------- ----------- -------- ------ ---------- --------------- --------------
Chilean action, Seagram de Criminal claim filed Contact: Diageo
Chilean company Chile with the court. Gonzalo Jimenez (Country
Seagram de Chile, Cariola, Diez, Manager
Comercial Limitada Perez-Cotapos & for Chile)
v. Ximena Campos Cia, Ltda.
Morales Avda. Andres Bello
2711, piso 19, Las
Condes,
Santiago, Chile
Tel: (56-2)
368-3573
Fax: (56-2)
360-4030
gjimenez@cariola.cl
AFRICA
A. Sedgwick v. Seagram Africa Management Royalties were paid by Diageo
Seagram Africa fee in the Martell entity to (Country
respect Seagram Africa, a Manager for
of jointly-held entity. South Africa)
royalties Local management are
on looking to Diageo to
Martell share in any legal
sales. costs or settlement
that may arise.
Unclear if this is a
shared liability.
South Africa Seagram Africa 3 outstanding employee Diageo
employee claims claims. (Country
Manager for
South Africa)
HONG KONG
Charlie Chen v. Unclear N/A Threatened claim by Pernod Ricard
various entities Charlie Chen relating (Country
to pre-Closing Manager for
transactions. Claim Hong Kong)
notice in connection
with Charlie Chen
correspondence
delivered to Vivendi.
Vivendi replied that
all of Charlie Chen's
claims have been settled
pursuant to a settlement
agreement signed between
a Vivendi affiliate and
Charlie Chen in December
2001.
86
RELEVANT
TRANSACTION BRANDS INSURANCE/ CONDUCTING
TITLE OF LITIGATION PARTY/IES INVOLVED STATUS INDEMNITY OUTSIDE COUNSEL PARTY/COMMENTS
- ------------------- ----------- -------- ------ ---------- --------------- --------------
EUROPE
Italian Seagram Italia Pending claim by Avv. Diego Pernod Ricard
dispute/Italian S.p.a. former employee Rigatti (Country
company (Defendant) alleging wrongful Studio Legale Manager for
Osvaldo Giusto v termination. Tributario France)
Seagram Italia Via Cornaggia, 10
S.p.a. 20123 Milano
Tel. 0039-02-85141
Fax 0039-02-89020299
Italian Seagram Italia Pending claims by Update received Pernod Ricard
dispute/Italian S.p.A. customers and an agent. form Gianfranco (Country
company (Defendant) Customer claims are of Sicignano of Manager for
Seagram Italia very low value and Seagram Italia France)
have been provided for
as operating costs Avv. Diego
Rigatti
Studio Legale
Tributario
Via Cornaggia, 10
20123 Milano
Tel. 0039-02-85141
Fax 0039-02-89020299
French dispute/ The Seagram Perrier- Demand letter sent by Pernod Ricard
French company Company Jouet Financier Moulins (Country
Delacor v La Limited, seeking indemnity for Manager for
Societe Champagne Joseph E. claims asserted France)
Perrier-Jouet Seagram & Sons against Perrier Jouet
Inc., Seagram by Delacor. Seagram's
International reply letter refused
BV (Defendants) indemnity claim.
No further
developments in 2002
87
RELEVANT
TRANSACTION BRANDS INSURANCE/ CONDUCTING
TITLE OF LITIGATION PARTY/IES INVOLVED STATUS INDEMNITY OUTSIDE COUNSEL PARTY/COMMENTS
- ------------------- ----------- -------- ------ ---------- --------------- --------------
Spanish The House of Corregidor Pending opposition by Brian March Pernod Ricard
dispute/Spanish Seagram Ltd Seagram against Wildbore & Gibbons (Country
company Spanish TM application Wildbore House Manager for
no. 2434378 and 361 Liverpool Road Portugal)
The House of pending appeal seeking London N1 1NL, UK
Seagram Ltd v. Coop clarification of Phone: 44-207-607-7312
Valenciana de grounds for rejecting Fax: 44-207-607-9062
Vitgicultores Valenciana's And German Burgos
(Spain) application no. Elzaburu
("Valenciana") 2372232. Madrid
Phone: 34 91 700 9400
Portuguese Sandeman & Cia N/A Customs cases. Tomas Vas Pinto Pernod Ricard
dispute/Portuguese (Portuguese MLGT (Country
company entity Portugal Manager for
retained by VU Portugal)
Sandeman tax but Portuguese
disputes counsel
1. German advises that
Case - liabilities
Portimplex are Diageo and
2. Luxemburg PR's)
Case - ACC
International
3.
Netherlands
Case -
Loendersloot
4. Collection
"a posteriori"
5. Celeiros
Case
Greek dispute/Greek Seagram Apka N/A Pernod Ricard
company (Country
Manager for
Seagram Apka S.A.: Greece)
3 employee claims
Greek dispute/Greek Seagram Apka Claim from client Local lawyers are Pernod Ricard
company seeking redress for dealing with (Country
contract termination. this. Manager for
Nektar v. Seagram Settlement may take up Greece)
Apka S.A. to 2004.
88
RELEVANT
TRANSACTION BRANDS INSURANCE/ CONDUCTING
TITLE OF LITIGATION PARTY/IES INVOLVED STATUS INDEMNITY OUTSIDE COUNSEL PARTY/COMMENTS
- ------------------- ----------- -------- ------ ---------- --------------- --------------
Greek dispute/Greek Seagram Apka Old receivables claims Local lawyers are Pernod Ricard
company against third dealing with these. (Country
parties. Local Manager for
Seagram Apka S.A. counsel is analysing Greece)
v. third parties. and pursuing only
significant claims.
Turkish company Seagram Pending claim for Pernod Ricard
Anadolou aircon unit. (Country
Seagram Anadolou (Plaintiff) Manager for
Turkey)
LATIN AMERICA
Costa Rican company Seagram de N/A Pernod Ricard
Costa Rica (Country
Purdy Boutique v. Manager for
Seagram de Costa Costa Rica)
Rica
[US (Defendant) All Threatened RICO DIAGEO IS Managed jointly
Lawyers][Colombian] Brands litigation related to REPRESENTED BY by Pernod
dispute allegations that WALFRIDO MARTINEZ Ricard and
Claims of Colombia Seagram smuggled goods OF HUNTON & Diageo
Governors into Colombia and EC WILLIAMS IN FLORIDA
to avoid payment of
taxes.
Claim by Costa Seagram de All Potential Edgar Pernod Ricard
Rican Tax Costa Rica Spirits investigation by Zurcher/Edgar Odio (Country
Authorities (Defendant) Puerto Rico Public Zurcher, Montoya & Manager for
Minister regarding Zurcher Costa Rica).
possible tax fraud. Courier C, 1, Av 9
Lower court rejected & 11
Public Minister's No 959
subpoena to search San Jose, Costa
Seagram's, and Rica
appellate court upheld Phone: 011 506 222 6633
decision. Seagram's Fax: 011 506 221 9127
has filed a petition
to dismiss any further And
criminal investigation
or other proceedings.. Robert Smit
Simpson Thacher &
Bartlett
425 Lexington
Avenue New York NY
10017
Phone: 212 455 2563
Fax: 212 455 2502
89
RELEVANT
TRANSACTION BRANDS INSURANCE/ CONDUCTING
TITLE OF LITIGATION PARTY/IES INVOLVED STATUS INDEMNITY OUTSIDE COUNSEL PARTY/COMMENTS
- ------------------- ----------- -------- ------ ---------- --------------- --------------
Brazilian action, Seagram de Camila Matter is pending. Santiago R. Pernod Ricard
Argentina company Argentina S.A. O'Connor (Country
Seagram de (Opposer) Marval, O'Farrel l Manager for
Argentina v. Camila & Mairal Brazil)
Distribuidora e Tel: 54 11 431 00100
Importadora Ltda. Fax: 54 11 431 00200
Email:
soc@marval.com.ar
ASIA
[Hong Kong lawyers] Seagram Asia Pending SEAGRAM ASIA Pernod Richard
dispute Pacific landlord/tenant PACIFIC CONTACT: (Country
Tang Hon Tsai v (Defendant) dispute. No steps MARIA TSANG Manager for
Seagram Asia Pacific taken by the claimant Hong Kong)
since January 2002. OUTSIDE COUNSEL:
MICHAEL CHEUK,
WONG & KEE
ROOM 3203-A-5
TOWER TWO LIPPO
CENTRE
89 QUEENSWAY
HONG KONG
Hong Kong company Unclear N/A Threatened claim by Pernod Ricard
Charlie Chen and Charlie Chen for (Country
Seagram (CI) Taiwan termination and Manager for
Ltd. back-salary. Unclear Hong Kong)
if claim is against VU, the
current owner of the shares of
this entity, or Diageo and
Pernod Ricard.
All other litigation expressly described in the Market Plan
SCHEDULE 5
TAXATION PROVISIONS
1. TAX WORKING GROUP
1.1 The Tax Working Group will be composed of such representatives (being
employees of Diageo and Pernod Ricard and/or advisers appointed by
each of them) as may be appropriate from time to time. The team leader
on the Diageo side shall be Chris Stiles (or such other person as
Diageo shall notify for the time being) and the team leader on the
Pernod Ricard side shall be Helene de Tissot (or such other person as
Pernod Ricard shall notify for the time being).
1.2 Each team leader shall be responsible for the composition of his or
her own teams on the Tax Working Group from time to time.
1.3 Starting from the date of this Agreement, the meetings of the Tax
Working Group shall take place quarterly, or more frequently if the
appointed team leaders so decide. Unless otherwise agreed by the team
leaders, the meetings will be held alternately in Paris and London at
the respective offices of Pernod Ricard and Diageo.
1.4 Except as provided otherwise by this agreement, each party shall bear
its own costs in relation to the Tax Working Group (including the
costs of any advisers appointed by each of them for the purposes of
the activities of the Tax Working Group).
1.5 The Tax Working Group will be the forum for discussing all issues
arising out of the Tax Plan (including the amendment of the Tax Plan
under paragraph 3 of this Schedule 5) and shall be the initial forum
for discussing other tax matters arising out of this Agreement.
Subject to paragraphs 4.1 and 4.2 below, the Tax Working Group shall
also deal with any tax related disputes with Vivendi under the Vivendi
Sale Agreement.
IMPLEMENTATION OF TAX PLAN
1.6 Subject to paragraph 2.2 below, the parties shall implement the Tax
Plan in accordance with the FIA Implementation Principles.
1.7 At any time during implementation of the Tax Plan, the parties may
agree to modify it and either change or exclude transactions in the
Tax Plan that have not yet been carried out or completed or include
further transactions in the Tax Plan. Subject to such agreement, the
modified Tax Plan shall replace the Tax Plan previously agreed for the
purposes of this Agreement. For the avoidance of doubt, references in
this Schedule to the Tax Plan are to the Tax Plan as it may be amended
from time to time pursuant to the provisions of this Schedule.
AMENDMENTS TO THE TAX PLAN
1.8 If any new information comes to light (whether as to the location or
ownership of assets or liabilities or relating to relevant Tax law or
practice) during the implementation of the Tax Plan, the parties may
(to the extent possible taking into account transactions that have
already occurred pursuant to 2.1 or 2.2 above) amend the Tax Plan and
shall do so where it is clear that the information on which the Tax
Plan was previously based is for any reason incorrect or that steps
comprised in the Tax Plan cannot be implemented for any legal reason
or otherwise.
91
1.9 In the event of any disagreement between the parties as to any
amendments required to be made under paragraph 3.1 above:
1.9.1 the amendments shall, as far as possible, be consistent with the FIA
Implementation Principles; and
1.9.2 the amendments shall, in accordance with the FIA Implementation
Principles, as far as possible, minimize the Shared Tax Cost,
provided that neither party shall be required to agree with amendments
to the Tax Plan which, notwithstanding that the amendments are in
accordance with the principles in paragraphs 3.2.1 and 3.2.2 above,
would have material adverse Tax consequences for that party or its
Affiliates. For these purposes, an amendment shall be treated as
having material adverse tax consequences if it can be expected to
result in one or more tax costs exceeding in aggregate US$100,000 in
any one jurisdiction.
1.10 In amending the Tax Plan, where there are alternative ways of carrying
out transactions in giving effect to the FIA Implementation Principles
(with the same effect on the amount of Shared Tax Cost) but the
ability of either party to utilise Tax Assets under sub-paragraphs 6.1
or 6.2 (Tax Assets) below varies according to which particular way is
employed, the party standing to benefit may be required by the other
to compensate it on a reasonable basis for agreeing to employ that
method in the amended Tax Plan.
PAYMENTS ON ACCOUNT OF SHARED TAX COST
1.11 Clauses 6.1 to 6.5 of this Agreement shall apply to Third Party
Proceedings and any other action taken by a Revenue Authority which is
likely to result in an increased liability to Tax (which, for the
purposes of the application of those clauses shall be treated as Third
Party Proceedings) in relation to liabilities comprised in Shared Tax
Cost, provided that:
1.11.1 clause 6.1 of this Agreement shall only apply for the purposes of this
Schedule 5 if the liability in question either is not specified in the
Tax Plan or exceeds, to a material extent, the amount specified in the
Tax Plan in respect of that liability;
1.11.2 subject to paragraph 4.1.1 above, a party shall be treated as having
complied with clauses 6.1 and 6.4 of this Agreement where it has
provided the other party with reasonable information, whether orally,
by email or in writing, in respect of such claim or action;
1.11.3 clause 6.2 of this Agreement shall only apply in respect of any such
claim or action if and to the extent that the Notified Party notifies
the Notifying Party that it requires the provisions of clause 6.2 to
be complied with; and
1.11.4 unless the Non-Conducting Party notifies the Conducting Party that it
objects to the manner of conduct of the Third Party Proceedings under
clause 6.2 of this Agreement (Conduct of Claims), the Conducting Party
shall be entitled to assume that it is duly complying with the
provisions of clause 6.2 of this Agreement and the Non-Conducting
Party shall be deemed to have waived its rights to claim against the
Conducting Party for breach of clause 6.2.
1.12 Payments on account of liabilities comprised in Shared Tax Cost (or
adjustments to the payments made in respect of such liabilities) shall
be settled in accordance with Clauses 6.3.1 and 6.3.6 of this
Agreement, provided that, for the purposes of this
92
paragraph 4.2 and clauses 6.3.1 and 6.3.6, a liability shall be
treated as having been discharged where a party makes an interim
payment on account of a liability to Tax comprised in the Shared Tax
Cost (even where that liability to Tax has not been finally
determined) or where a party makes a payment on account of Tax in
order to dispute a liability to Tax comprised in the Shared Tax Cost.
1.13 The determination of the nature or amount or value of payments (and
any adjustments thereto) in respect of Shared Tax Cost referred to in
paragraph 4.2 above shall take into account the time value of money at
commercial interest rates for the relevant currency and the amount of
the Shared Tax Cost shall be adjusted to reflect the same.
1.14 For the purposes of paragraph 4.1.1 above, the parties agree that an
amount shall be material if it exceeds $100,000.
POST IMPLEMENTATION ADJUSTMENTS
Where payments have been made on account of the Shared Tax Cost under
paragraph 4.2 above, and the final determination of the amount of
liabilities to Tax comprised in the Shared Tax Cost is different from
that assumed in the original calculation of such payments, payments
shall be made to ensure that, after taking into account such payments
and any payment made under paragraph 4.2, the aggregate position
reflects the final determination of those liabilities to Tax.
TAX ASSETS
1.15 Subject to the provisions of the Vivendi Sale Agreement:
1.15.1 any Tax Assets within the Acquired Assets at Closing should first be
used to reduce or eliminate any Historic Tax Liability and then used
by the parties to minimize the Shared Tax Cost; and
1.15.2 any Tax Assets within any Jointly Owned Entities, whenever arising,
shall be used by the parties to minimize the Shared Tax Cost,
in either case, in accordance with the FIA Implementation Principles.
1.16 Any Tax Asset that arises as a result of transactions included in the
Tax Plan shall first be taken into account in determining the amount
of any liability comprised in the Shared Tax Cost, provided that, this
paragraph 6.2 shall not apply to any Tax Asset that falls within
paragraph 6.4.5 below (or any Tax Asset that falls within paragraph
6.4.4 below on the basis that such Tax Assets do not arise from steps
included in the Tax Plan).
1.17 Any Tax Assets referred to in paragraphs 6.1 and 6.2 and not used or
otherwise taken into account in accordance with those paragraphs will
be available to the party entitled to them in law once the Tax Plan
has been fully implemented for its own use and benefit and subject to
no obligations under this Agreement.
1.18 For the purposes of determining the amount of a liability to Tax to be
comprised in the Shared Tax Cost:
1.18.1 such liability shall be reduced by Tax Assets referred to in
paragraphs 6.1 and 6.2 above, to the extent, in either case, that such
Tax Assets are available to reduce or eliminate that liability;
93
1.18.2 no account shall be taken of Tax Assets available to either party
(other than Tax Assets referred to in paragraph 6.4.1 above) unless
either party agreed to make such Tax Assets available for that purpose
in which case the terms on which such Tax Assets are made available
shall be agreed between the parties;
1.18.3 no account shall be taken of any Tax Asset arising as a result of the
payment of the costs comprising a Shared Liability or a Joint
Liability, to the extent that such Tax Asset is taken into account in
calculating the amount of any payment made in respect of that Shared
Liability or Joint Liability pursuant to clause 6 of this Agreement or
any payment made pursuant to clauses 15 to 20 of the Framework and
Implementation Agreement;
1.18.4 no account shall be taken of any Tax Asset arising as a result of the
payment of any amount pursuant to clauses 15 to 20 of the Framework
and Implementation Agreement, or clauses 4 to 6 or 18.2 of this
Agreement ; and
1.18.5 no account shall be taken of any Tax Asset arising on the acquisition
by Diageo (or an Affiliate of Diageo) of any Diageo Asset or by Pernod
Ricard (or an Affiliate of Pernod Ricard) of any Pernod Ricard Asset
pursuant to the Vivendi Sale Agreement or any step in the Tax Plan.
1.19 Where one party ("the first party"), pursuant to the provisions of
this Agreement, is obliged to account to the other party for net
income or profits arising from ordinary trading activities in relation
to assets allocated to the other party, the first party shall be
entitled to deduct from such payments an amount equal to liabilities
to Tax that would have been payable in respect of such income or
profits but for the use of a Tax Asset that would otherwise have been
available to the first party or its Affiliates.
TAX ON TRADING PROFITS AND OTHER INCOME POST-COMPLETION
1.20 Liabilities to Tax in relation to post-Closing income or profits
arising from any trading activities shall be:
1.20.1 Diageo Liabilities where such activities relate to Diageo Assets;
1.20.2 Pernod Ricard Liabilities where such activities relate to Pernod
Ricard Assets; and
1.20.3 borne by the entity that recognises the income where such activities
relate to any other Acquired Assets.
1.21 Customs and Excise duty liabilities arising in respect of all
post-Closing business activities shall be Diageo Liabilities where
they relate to Diageo Assets and Pernod Ricard Liabilities where they
relate to Pernod Ricard Assets, and shall be borne by the entity that
recognises the income where they relate to any other Acquired Assets.
TAX COMPLIANCE
1.22 Subject to paragraph 8.3 below, Tax compliance shall be the
responsibility of the party identified in the Tax Plan and the persons
identified in the Tax Plan (or any other persons as may be notified by
the responsible party from time to time) shall deal with tax
compliance matters on behalf of that party.
1.23 Subject to paragraph 8.3 below, it is the obligation of the party
identified in the Tax Plan as being responsible for tax compliance to
complete any tax return and deal with all tax compliance matters such
as correspondence and meetings with any relevant
94
Revenue Authority in accordance with the Tax Plan, subject only to any
change in law or practice after the date of the Tax Plan.
1.24 The party identified in the Tax Plan as being responsible for tax
compliance shall be deemed to have complied with its obligations under
paragraphs 8.1 and 8.2 above to the extent that it has appointed a
firm of tax advisers/ accountants of international standing to deal
with tax compliance matters on its behalf. Such firm may be changed
from time to time subject to agreement between the parties.
1.25 Unless otherwise agreed, the costs of tax compliance in respect of
each Jointly-Owned Entity shall be borne by that Jointly-Owned Entity.
EXCHANGE OF INFORMATION
1.26 Both parties agree to exchange all information reasonably requested by
the other party relating to tax matters:
1.26.1 to enable full implementation of the FIA Implementation Principles and
the SOFIA Implementation Principles;
1.26.2 arising out of any tax return and/or any other tax compliance matters
including any such information reasonably required by either party or
any of their Affiliates for the purposes of their tax filings or
disputes with any Revenue Authority; and
1.26.3 arising out of any claims or disputes under the Vivendi Sale
Agreement,
provided that neither party shall be obliged to exchange any such
information where such exchange would, in the reasonable opinion of
the relevant party, breach any law including anti-trust law.
INTERPRETATION
1.27 A liability to Tax shall not form part of the Shared Tax Cost to the
extent that it arises, or is increased as a result of:
1.27.1 the Tax Plan not having been implemented in accordance with its terms
(except where the parties have agreed to amend the Tax Plan during its
implementation); or
1.27.2 some other transaction (outside the precise terms of the Tax Plan)
carried out by or between Diageo or Pernod Ricard and their respective
Affiliates.
1.28 The parties may agree such amendments to the definition of Shared Tax
Cost as, in their joint opinion, may be required either to give effect
to the FIA Implementation Principles or the SOFIA Implementation
Principles or to give effect to any change in law or practice.
1.29 For the purposes of this Agreement, liabilities to Tax shall not form
part of the Shared Tax Cost to the extent that:
1.29.1 subject to paragraph 10.4 below, they comprise Taxes required to be
deducted or withheld by any Jointly-owned Entity ("the distributing
company") from any dividend paid or distribution made (including any
distribution made in the liquidation or winding up of any such
company) to Diageo or any Affiliate of Diageo or to Pernod Ricard or
any Affiliate of Pernod Ricard;
95
1.29.2 they comprise Taxes paid by Diageo or any Affiliate of Diageo or by
Pernod Ricard or any Affiliate of Pernod Ricard on receipt of any
dividend or distribution referred to in paragraph 10.3.1 above;
1.29.3 they comprise Taxes arising from transactions that are denoted as not
being included in the final Tax Plan or that comprise transactions
taken by one of the parties to reorganize or establish its own group
structure;
1.29.4 they comprise Taxes paid by Diageo or an Affiliate of Diageo or by
Pernod Ricard or an Affiliate of Pernod Ricard in respect of the
disposal of shares (whether by sale, liquidation, dissolution or
otherwise) in a body corporate that is a Jointly-owned Entity where,
prior to that disposal, the shares in that Jointly-owned Entity were
beneficially owned by Diageo (or an Affiliate of Diageo) and Pernod
Ricard (or an Affiliate of Pernod Ricard) in the Diageo Proportion and
the Pernod Ricard Proportion respectively;
1.29.5 they comprise Taxes arising from the sale of the quotas in Seagram do
Brasil Industria e Comercio Ltda. by JES and its subsidiaries to
Lawrenceburg Distillers and Importers LLC pursuant to the JES Seagram
Venture Assets and Pernod Ricard Assets Sale and Purchase Agreement
dated 21 December 2001, as amended; or
1.29.6 they comprise Taxes arising on the receipt of any payment to be made
pursuant to clauses 15 to 20 of the Framework and Implementation
Agreement, or clauses 4 to 6 or 18.2 of this Agreement.
1.30 Taxes shall not be treated as falling within paragraph 10.3.1 above
where such Taxes deducted or withheld were of the nature of Taxes
imposed on the income, profits or gains of the distributing company at
the time of distribution. For this purpose, Taxes imposed on the
income, profits or gains of the distributing company include Taxes
imposed by way of deduction or withholding from the distribution but
which were either creditable against the distributing company's own
Tax liabilities or discharged a portion of what would otherwise have
been the distributing company's own liability to Tax (regardless, in
either case, of any credit that might be given to shareholders in
respect of that liability to Tax under any imputation or similar
system).
1.31 Subject to paragraph 10.3 above and without prejudice to the
obligations of the parties under paragraph 3(C) of Schedule 5 to the
Framework and Implementation Agreement, liabilities to Tax shall be
part of the Shared Tax Cost notwithstanding that the information upon
which the Tax Plan has been based is for any reason incorrect.
1.32 For the avoidance of doubt, the parties intend that the amount of any
payment to be made pursuant to clauses 15 to 20 of the Framework and
Implementation Agreement or clauses 4 to 6 or 18.2 of this Agreement
in respect of any liability shall be calculated for the purposes of
this Agreement after taking into account any Tax Asset, arising as a
result of the discharge of that liability, available in law to the
person who discharges the relevant liability.
1.33 Any disputes between the parties in relation to the application of
this Schedule 5 or in connection with the Tax Plan shall be resolved
pursuant to clauses 26 to 29 of this Agreement (Dispute
Resolution/Deadlock Resolution).
96
SCHEDULE 6
JOINTLY-OWNED ENTITIES
1. WHERE ACTING IN THEIR CAPACITY AS A PERSON HOLDING (DIRECTLY OR MANAGING
INDIRECTLY) PERNOD RICARD ON-SALE ASSETS, THE PARTY
FOLLOWING COMPANIES IN THE FOLLOWING JURISDICTIONS:
- ---------- -------------------------------------------------------------------------------------- -------------------
1.1 NEW YORK, USA
- ---------- -------------------------------------------------------------------------------------- -------------------
Austin, Nichols & Company, Incorporated; and Pernod Ricard
- ---------- -------------------------------------------------------------------------------------- -------------------
1.2 ENGLAND
- ---------- -------------------------------------------------------------------------------------- -------------------
PR Newco 5 Limited; and Pernod Ricard
- ---------- -------------------------------------------------------------------------------------- -------------------
1.3 FRANCE
- ---------- -------------------------------------------------------------------------------------- -------------------
Santa Lina. Pernod Ricard
- ---------- -------------------------------------------------------------------------------------- -------------------
2. THE FOLLOWING COMPANIES IN THE FOLLOWING JURISDICTIONS:
- ---------- -------------------------------------------------------------------------------------- -------------------
2.1 AUSTRALIA
- ---------- -------------------------------------------------------------------------------------- -------------------
Chatelle Pty Limited (see further Schedule 10 (Outstanding Matters)) (50%) Pernod Ricard
- ---------- -------------------------------------------------------------------------------------- -------------------
2.2 AUSTRIA
- ---------- -------------------------------------------------------------------------------------- -------------------
Seagram Spirituosen Ges.mbH (100%). Diageo
- ---------- -------------------------------------------------------------------------------------- -------------------
2.3 BELGIUM
- ---------- -------------------------------------------------------------------------------------- -------------------
Seagrams Belgium N.V. (100%) Diageo
- ---------- -------------------------------------------------------------------------------------- -------------------
Forwarding and Handling Co. N.V. (100%) Diageo
- ---------- -------------------------------------------------------------------------------------- -------------------
2.4 CANADA
- ---------- -------------------------------------------------------------------------------------- -------------------
Distillers Corporation Limited (100%) Diageo
- ---------- -------------------------------------------------------------------------------------- -------------------
Joseph E Seagram & Sons Limited (100%) Diageo
- ---------- -------------------------------------------------------------------------------------- -------------------
Treat Venture Holdings Limited (100%) Diageo
- ---------- -------------------------------------------------------------------------------------- -------------------
2.5 CHILE
- ---------- -------------------------------------------------------------------------------------- -------------------
Seagram de Chile Commercial Ltda (100%) Diageo
- ---------- -------------------------------------------------------------------------------------- -------------------
2.6 COLOMBIA
- ---------- -------------------------------------------------------------------------------------- -------------------
Atlas Commercial Seagram de Colombia S.A. (100%) Pernod Ricard
- ---------- -------------------------------------------------------------------------------------- -------------------
2.7 COSTA RICA
- ---------- -------------------------------------------------------------------------------------- -------------------
Seagram de Costa Rica S.A. (100%) Pernod Ricard
- ---------- -------------------------------------------------------------------------------------- -------------------
Alimentos Preparados S.A. (100%) Pernod Ricard
- ---------- -------------------------------------------------------------------------------------- -------------------
Seagram Centroamericana S.A. (100%) Diageo
- ---------- -------------------------------------------------------------------------------------- -------------------
2.8 CZECH REPUBLIC
- ---------- -------------------------------------------------------------------------------------- -------------------
Seagram Spol. s.r.o. (100%) Pernod Ricard
- ---------- -------------------------------------------------------------------------------------- -------------------
2.9 DOMINICAN REPUBLIC
- ---------- -------------------------------------------------------------------------------------- -------------------
Gist Dominicana S.A. (100%) Pernod Ricard
- ---------- -------------------------------------------------------------------------------------- -------------------
Industria de Licores Internationales S.A. (100%) Pernod Ricard
- ---------- -------------------------------------------------------------------------------------- -------------------
Seagram Dominicana S.A. (100%) Pernod Ricard
- ---------- -------------------------------------------------------------------------------------- -------------------
2.10 GERMANY
- ---------- -------------------------------------------------------------------------------------- -------------------
Julius Kayser & Co GmbH (100%) Diageo
- ---------- -------------------------------------------------------------------------------------- -------------------
Seagram Global Markets Group GmbH (100%) Diageo
- ---------- -------------------------------------------------------------------------------------- -------------------
2.11 GREECE
- ---------- -------------------------------------------------------------------------------------- -------------------
Lupak S.A. (100%) Pernod Ricard
- ---------- -------------------------------------------------------------------------------------- -------------------
Seagram Apka S.A. (100%) Pernod Ricard
- ---------- -------------------------------------------------------------------------------------- -------------------
Seagram Apka Dodescanes S.A. (100%) Pernod Ricard
- ---------- -------------------------------------------------------------------------------------- -------------------
2.12 HONG KONG
- ---------- -------------------------------------------------------------------------------------- -------------------
Seagram C.I. (Taiwan) Company Limited (see further Schedule 10 Pernod Ricard
(Outstanding Matters)) (90% Class A, 99.9% Class B
shares owned by Vivendi subsidiary)
- ---------- -------------------------------------------------------------------------------------- -------------------
2.13 HUNGARY
- ---------- -------------------------------------------------------------------------------------- -------------------
Seagram Hungary Ltd (100%) Pernod Ricard
- ---------- -------------------------------------------------------------------------------------- -------------------
2.14 ITALY
- ---------- -------------------------------------------------------------------------------------- -------------------
Seagram Italia S.p.A. (100%) Pernod Ricard
- ---------- -------------------------------------------------------------------------------------- -------------------
Seagram Global Markets Group Srl. (100%) Pernod Ricard
- ---------- -------------------------------------------------------------------------------------- -------------------
2.15 ISRAEL
- ---------- -------------------------------------------------------------------------------------- -------------------
International Distillers of Israel Limited (100%) Pernod Ricard
- ---------- -------------------------------------------------------------------------------------- -------------------
2.16 NETHERLANDS
- ---------- -------------------------------------------------------------------------------------- -------------------
Globalex B.V. (100%) Pernod Ricard
- ---------- -------------------------------------------------------------------------------------- -------------------
Matcommerce B.V. (100%) Pernod Ricard
- ---------- -------------------------------------------------------------------------------------- -------------------
Seagram Nederland B.V. (100%) Pernod Ricard
- ---------- -------------------------------------------------------------------------------------- -------------------
2.17 PHILIPPINES
- ---------- -------------------------------------------------------------------------------------- -------------------
Seagram Philippines Inc (99.9%) Pernod Ricard
- ---------- -------------------------------------------------------------------------------------- -------------------
2.18 POLAND
- ---------- -------------------------------------------------------------------------------------- -------------------
Seagram Polska Sp.zo.o (100%) Pernod Ricard
- ---------- -------------------------------------------------------------------------------------- -------------------
2.19 PORTUGAL
- ---------- -------------------------------------------------------------------------------------- -------------------
Sandeman & Ca. LDA (75%) Pernod Ricard
- ---------- -------------------------------------------------------------------------------------- -------------------
Sarano & Companhia (100%) Pernod Ricard
- ---------- -------------------------------------------------------------------------------------- -------------------
Seagram Portugal - Producao E Comerciao de Bebidas Lda (100%) Pernod Ricard
- ---------- -------------------------------------------------------------------------------------- -------------------
2.20 RUSSIA
- ---------- -------------------------------------------------------------------------------------- -------------------
Silver Age LLC (100%) Diageo
- ---------- -------------------------------------------------------------------------------------- -------------------
Universal Distribution LLC (100%) Diageo
- ---------- -------------------------------------------------------------------------------------- -------------------
Master Distributors LLC (100%) Diageo
- ---------- -------------------------------------------------------------------------------------- -------------------
2.21 SINGAPORE
- ---------- -------------------------------------------------------------------------------------- -------------------
Associated Liquor Distributors (S) Pte Ltd (100%) Pernod Ricard
- ---------- -------------------------------------------------------------------------------------- -------------------
Seagram Asia Pacific (100%) Pernod Ricard
- ---------- -------------------------------------------------------------------------------------- -------------------
2.22 SLOVAKIA
- ---------- -------------------------------------------------------------------------------------- -------------------
Seagram Slovakia s.r.o (100%) Pernod Ricard
- ---------- -------------------------------------------------------------------------------------- -------------------
2.23 SOUTH AFRICA
- ---------- -------------------------------------------------------------------------------------- -------------------
Seagram Africa (Pty) Ltd (100%) Diageo
- ---------- -------------------------------------------------------------------------------------- -------------------
2.24 SPAIN
- ---------- -------------------------------------------------------------------------------------- -------------------
Sandeman-Coprimar S.A. (100%) Diageo
- ---------- -------------------------------------------------------------------------------------- -------------------
Chibros S.A. (100%) Diageo
- ---------- -------------------------------------------------------------------------------------- -------------------
Comercial Seagram Espana S.A. (100%) Diageo
- ---------- -------------------------------------------------------------------------------------- -------------------
2.25 SWEDEN
- ---------- -------------------------------------------------------------------------------------- -------------------
Seagram Nordic AB (100%) Diageo
- ---------- -------------------------------------------------------------------------------------- -------------------
2.26 SWITZERLAND
- ---------- -------------------------------------------------------------------------------------- -------------------
Seagram (Switzerland) Ltd (99.9%) Diageo
- ---------- -------------------------------------------------------------------------------------- -------------------
2.27 TURKEY
- ---------- -------------------------------------------------------------------------------------- -------------------
Seagram Anadolou (100%) Pernod Ricard
- ---------- -------------------------------------------------------------------------------------- -------------------
Seagram Icki Dagitum (100%) Pernod Ricard
- ---------- -------------------------------------------------------------------------------------- -------------------
2.28 UKRAINE
- ---------- -------------------------------------------------------------------------------------- -------------------
Seagram Ukraine Limited Pernod Ricard
- ---------- -------------------------------------------------------------------------------------- -------------------
2.29 UNITED KINGDOM
- ---------- -------------------------------------------------------------------------------------- -------------------
Agnew (Tyneside) Limited (100%) Pernod Ricard
- ---------- -------------------------------------------------------------------------------------- -------------------
Diageo Sub 1 (formerly Page & Sandeman Limited) (100%) Pernod Ricard
- ---------- -------------------------------------------------------------------------------------- -------------------
Diageo Sub 2 (formerly Robertson Bros & Co (Port & Sherry Shippers) Ltd) (100%) Pernod Ricard
- ---------- -------------------------------------------------------------------------------------- -------------------
Erfield Limited (100%) Pernod Ricard
- ---------- -------------------------------------------------------------------------------------- -------------------
Rigrun Limited (100%) Pernod Ricard
- ---------- -------------------------------------------------------------------------------------- -------------------
Sarano & Co Limited (100%) Pernod Ricard
- ---------- -------------------------------------------------------------------------------------- -------------------
Seagram European Customer Services Limited (100%) Pernod Ricard
- ---------- -------------------------------------------------------------------------------------- -------------------
Seagram Retail Limited (100%) Pernod Ricard
- ---------- -------------------------------------------------------------------------------------- -------------------
98
Treat Venture (UK) Limited (100%) Diageo
- ---------- -------------------------------------------------------------------------------------- -------------------
2.30 UNITED STATES OF AMERICA
- ---------- -------------------------------------------------------------------------------------- -------------------
Antique Distributing Company, Inc (100%) Diageo
- ---------- -------------------------------------------------------------------------------------- -------------------
Seagram Sales Corporation (100%) Diageo
- ---------- -------------------------------------------------------------------------------------- -------------------
Madison Distributors, Inc. (100%) Diageo
- ---------- -------------------------------------------------------------------------------------- -------------------
Premium Beverages, Inc. (100%) Diageo
- ---------- -------------------------------------------------------------------------------------- -------------------
Diane Distillers, Inc. (100%) Diageo
- ---------- -------------------------------------------------------------------------------------- -------------------
Nancy Flavors Corporation (100%) Diageo
- ---------- -------------------------------------------------------------------------------------- -------------------
Hawe Holding Corporation (100%) Diageo
- ---------- -------------------------------------------------------------------------------------- -------------------
Harold Realty Corporation (100%) Diageo
- ---------- -------------------------------------------------------------------------------------- -------------------
KenAGRA, Inc. (100%) Diageo
- ---------- -------------------------------------------------------------------------------------- -------------------
Treat Venture LLC Diageo
- ---------- -------------------------------------------------------------------------------------- -------------------
2.31 URUGUAY
- ---------- -------------------------------------------------------------------------------------- -------------------
Dafinel S.A. (100%) Pernod Ricard
- ---------- -------------------------------------------------------------------------------------- -------------------
Seagram Del Uruguay S.A. (100%) Pernod Ricard
- ---------- -------------------------------------------------------------------------------------- -------------------
99
SCHEDULE 7
ON-SALE AND VENTURE TRANSACTIONS
EXPECTED
CLOSING
VENTURE BRANDS SELLER(S) PURCHASER(S) SIGNING DATE DATE
------------------------------------- ------------------------------ ----------------------------- -------------- ---------
1. Oddbins Diageo Venture Bermuda Societe d'Investissement 10/08/01 04/01/02
Limited and Pernod Ricard SA d'Aquitaine SA (COPEGEF)
- -------- ------------------------------------- ------------------------------ ----------------------------- -------------- ---------
2. Seagrams Mixers Treat Venture LLC The Coca-Cola Company 07/05/02 14/06/02
- -------- ------------------------------------- ------------------------------ ----------------------------- -------------- ---------
3. Four Roses Treat Venture LLC Kirin Brewery Company 04/10/01 19/02/02
Henry McKenna
- -------- ------------------------------------- ------------------------------ ----------------------------- -------------- ---------
4. Dufres (Chile) Seagram de Chile S.A. Vina Tarapaca Sold
Red Seal (Chile) Locally -
Toconao (Chile) March 02
- -------- ------------------------------------- ------------------------------ ----------------------------- -------------- ---------
5. Chemineaud (Venezeula only) Licorerias Unidas S.A. Distilerias Unidas S.A. 29/08/02 29/08/02
Manager
Diplomatico
- -------- ------------------------------------- ------------------------------ ----------------------------- -------------- ---------
6. Raposeira Selviac Amsterdam B.V. and Shaw Clifte Associates 09/07/02 21/08/02
Pernod Ricard SA
- -------- ------------------------------------- ------------------------------ ----------------------------- -------------- ---------
7. Mumm Sekt Diageo Venture Bermuda Domkeller GmbH 17/09/01 16/01/02
Matheus Muller Limited and Pernod Ricard SA (Rotkaeppchen)
Matheus Muller Sekt
Jules Mumm Selection
- -------- ------------------------------------- ------------------------------ ----------------------------- -------------- ---------
8. Silver Age (Russia) Silver Age LLC Agro Holding 13/03/02 TBD
- -------- ------------------------------------- ------------------------------ ----------------------------- -------------- ---------
EXPECTED
CLOSING
VENTURE BRANDS SELLER(S) PURCHASER(S) SIGNING DATE DATE
------------------------------------- ------------------------------ ----------------------------- -------------- ---------
9. Sandeman Diageo plc, Selviac Sogrape Holdings SGPS SA 07/12/01 18/06/02
Robertson's Amsterdam BV, Pernod Ricard
Capa Negra SA, Iberian Vintners SL,
Capa Real IW Investments SA
Confradeiro
Fine Rick Madeira
Imperial
Imperial Tawny Port
Partners
Quinta Do Confradeiro
Rain Water Madeira
Terracos
- -------- ------------------------------------- ------------------------------ ----------------------------- -------------- ---------
10. Rene Briand Seagram Italia S.p.A. Torino Distillati S.r.l 24/07/02 03/09/02
Piave
Gemma D'Uva
- -------- ------------------------------------- ------------------------------ ----------------------------- -------------- ---------
11. Adams Treat Venture Holdings White Rock Distilleries Inc. 29/07/02 01/08/02
Adams Antique Ltd/Treat Venture LLC
Adams Private Stock
Canadian Hunter
Indigo
Kolomyka
Melchers Very Mild
Mount Royal / Mount Royal Light
Premium Deluxe
- -------- ------------------------------------- ------------------------------ ----------------------------- -------------- ---------
12. OVD Seagram UK and Treat (UK) William Grant & Sons Ltd. 14/10/02
VAT 19 Venture Ltd.
Wood's
- -------- ------------------------------------- ------------------------------ ----------------------------- -------------- ---------
13. Maschio Seagram Italia S.p.A. Cantine Cooperative Riunite 01/10/02 01/10/02
Gran Festa S.c.a.r.l.
Incrocio Manzoni
Refosco
- -------- ------------------------------------- ------------------------------ ----------------------------- -------------- ---------
14. Chatelle Napoleon (Australia) TBD
- -------- ------------------------------------- ------------------------------ ----------------------------- -------------- ---------
101
EXPECTED
CLOSING
VENTURE BRANDS SELLER(S) PURCHASER(S) SIGNING DATE DATE
------------------------------------- ------------------------------ ----------------------------- -------------- ---------
15. Paul Masson Brandy Treat Venture Holdings Barton TBD TBD
Limited
- -------- ------------------------------------- ------------------------------ ----------------------------- -------------- ---------
16. 30 Degrees High (China) Chinese JV Partner TBD
D'Accord (China)
Fontaine (China)
Summer Palace (China)
- -------- ------------------------------------- ------------------------------ ----------------------------- -------------- ---------
17. Centenario (Costa Rica) Treat Venture LLC Waked 20/12/02 TBD
Ron Rico (Costa Rica)
- -------- ------------------------------------- ------------------------------ ----------------------------- -------------- ---------
18. Burnetts White Satin (except Japan) Seagram United Kingdom Heaven Hill Distilleries 23/08/02 23/08/02
Limited and PR NewCo 5 Inc.
Limited
- -------- ------------------------------------- ------------------------------ ----------------------------- -------------- ---------
19. Martinazzi (Italy) Seagram Italia German Buyer TBD TBD
- -------- ------------------------------------- ------------------------------ ----------------------------- -------------- ---------
20. Sabra International Distillers of TBD TBD
Israel
- -------- ------------------------------------- ------------------------------ ----------------------------- -------------- ---------
102
SCHEDULE 8
FIA IDENTIFIED SALE AND PURCHASE AGREEMENTS
1. The JES Seagram Venture Assets and Pernod Ricard Assets Sale and Purchase
Agreement entered into by JES, Treat Venture LLC and Lawrenceburg
Distillers & Importers LLC and dated 21 December 2001.
The JES Pernod Ricard On-Sale Assets Sale and Purchase Agreement entered into by
Austin, Nichols & Co., Incorporated and JES and dated 21 December 2001.
The Contribution Agreement entered into by Gramet Holding Corp., JES and Treat
Venture LLC and dated 21 December 2001.
The Burnett's White Satin Asset Purchase Agreement entered into by Seagram
United Kingdom Limited and PR Newco 5 Limited and dated 21 December 2001.
The OVD Asset Purchase Agreement entered into by Seagram United Kingdom Limited
and Treat (UK) Venture Limited and dated 21 December 2001.
The Passport Asset Purchase Agreement entered into by Chivas Brothers Limited
and PR Newco 5 Limited and dated 21 December 2001.
The Nikolai transfer letter agreement entered into by PR Newco 5 Limited and JES
and dated 21 December 2001.
SCHEDULE 9
SETTLEMENT OF FRAMEWORK AND IMPLEMENTATION AGREEMENT OBLIGATIONS
PART 1
1. DEFINITIONS
In this Schedule, the following words and expressions have the
following meanings:
1.1 AUGUST 2002 AGREEMENT: the agreement dated 7 August 2002 made
between the parties amending the Framework and Implementation
Agreement;
1.2 JES/LDI AGREEMENT: the JES Seagram Venture Assets and Pernod
Ricard Assets Sale and Purchase Agreement made between JES,
Treat Venture LLC, and Lawrenceburg Distillers & Importers LLC
dated 21 December 2001;
1.3 MARCH 2002 AGREEMENT: the agreement dated 21 March 2002 made
between the parties amending the Framework and Implementation
Agreement;
1.4 ONGOING ITEMS: those matters which are described in paragraph
3.1 below;
1.5 OUTSTANDING ITEMS: those matters which are described in
paragraph 4.1 below;
1.6 RESTRUCTURING COSTS: the meaning given in the Framework and
Implementation Agreement;
1.7 SETTLEMENT ITEMS: those matters which are taken into account
in the items which are set out in the numbered rows 1 and 6 to
11 of Column 1 of the table in Part 2 of this Schedule;
1.8 SETTLED RESTRUCTURING COSTS: Restructuring Costs excluding any
Restructuring Costs comprised in the Outstanding Items;
1.9 SMWC: Shared Monetary Working Capital as defined in and for
the purposes of the Framework and Implementation Agreement;
1.10 SPECIAL ITEMS: those matters referred to in the appendix to
the March 2002 Agreement and which are described in the
numbered rows 2 to 5 of Column 1 of the table in Part 2 of
this Schedule.
SETTLEMENT ITEMS
1.11 Pernod Ricard hereby agrees to pay, on its own behalf and on
behalf of its Affiliates, the amounts set out in Column 3 of
the table in Part 2 of this Schedule in respect of the
Settlement Item set out opposite each amount and Diageo agrees
that it receives such amounts, on its own behalf and on behalf
of its Affiliates, in each case, in accordance with the
provisions of the relevant agreement set out in the footnote
to the table.
1.12 Diageo hereby agrees to pay, on its own behalf and on behalf
of its Affiliates, the amounts set out in Column 2 of the
table in Part 2 of this Schedule in respect of the Settlement
Item set out opposite each amount and Pernod Ricard agrees
that it receives, on its own behalf and on behalf of its
Affiliates, in each case, in accordance with the provisions of
the relevant agreement set out in the footnote to the table.
1.13 The payments referred to in paragraphs numbered 2.1 and 2.2
shall be in full and final settlement of all amounts payable
in respect of the Settlement Items and the parties agree that
such amounts shall not be subject to further verification
whether by audit or otherwise. No amounts taken into account
in the Special Items described in the numbered rows 2 to 4 of
Column 1 of the table in Part 2 of this Schedule shall be
treated as part of Shared Tax Cost.
1.14 The parties agree that the payment made pursuant to paragraph
2.1 in respect of the Settlement Item in numbered row 6 of
Column 1 of the table in Part 2 of this Schedule:
1.14.1 is in full and final settlement of any adjustment required to
be made pursuant to the Framework and Implementation Agreement
in respect of the Special Items;
1.14.2 shall be treated as part of the settlement made between the
parties in relation to SMWC pursuant to the Framework and
Implementation Agreement; and
1.14.3 shall be made on 10 January 2003.
1.15 Any payments to be made under paragraphs 2.1 and 2.2, other
than those referred to in paragraph 2.4, shall be made on 31
January 2003.
ONGOING ITEMS
1.16 For the purposes of this Schedule, Ongoing Items shall mean:
1.16.1 Occupation Costs and Mitigation Expenses (as defined in Clause
15.2 of this Agreement) relating to the Risk Properties
referred to in the US section of the Market Plan that are
comprised in Restructuring Costs incurred by Diageo (or
Affiliates of Diageo) as calculated in accordance with Clause
15.2 of this Agreement.
1.16.2 Restructuring Costs incurred at any time by Jointly-owned
Entities.
1.17 The parties agree that they will make, or procure that their
Affiliates make, appropriate payments in full and final
settlement of those Ongoing Items pursuant to the relevant
provisions of the Framework and Implementation Agreement and
the JES/LDI Agreement within 10 Business Days of receipt of
notification that payment has been made.
OUTSTANDING ITEMS
1.18 For the purposes of this Schedule, Outstanding Items shall
mean adjustment payments in relation to:
1.18.1 profits (or losses) arising from the sale of inventory
relating to Diageo Assets or Pernod Ricard Assets where the
selling entity is either the other party (or an Affiliate of
the other party) or a Jointly-owned Entity whether pursuant to
paragraph 1 of Schedule 6 to the Framework and Implementation
Agreement or otherwise;
1.18.2 the purchase price paid by Diageo (or any Affiliate of Diageo)
to acquire inventory relating to Diageo Assets or by Pernod
Ricard (or any Affiliate of Pernod Ricard) to acquire
inventory relating to Pernod Ricard Assets from the other
party (or an Affiliate of the other party) or a Jointly-owned
Entity pursuant to clause 16 of the Framework and
Implementation Agreement; and
2
1.18.3 the amount of the aggregate net surplus acquired or net
deficit assumed in respect of the Company Plans (as defined in
the Framework and Implementation Agreement) and determined in
accordance with clause 38.2(B) of the Framework and
Implementation Agreement.
1.19 The parties agree:
1.19.1 to use reasonable endeavours to agree, in good faith, the
actual amounts of all the Outstanding Items and the mechanism
by which such amounts should be settled on or before 31 March
2003;
1.19.2 that they shall each provide to the other such information as
may be reasonably requested of them to allow the other party
to verify the amount of the Outstanding Items;
1.19.3 that they will make, or procure that their Affiliates make,
appropriate payments in full and final settlement of those
Outstanding Items in respect of which they have reached
agreement within 10 Business Days of such agreement pursuant
to the relevant provisions of the Framework and Implementation
Agreement and the JES/LDI Agreement;
1.19.4 that if they fail to reach agreement in respect of any of the
Outstanding Items they will endeavour to resolve such dispute
in accordance with the provisions of the Framework and
Implementation Agreement.
1.20 For the avoidance of doubt, any final settlement of the
Outstanding Items shall be made pursuant to the relevant
provisions of the Framework and Implementation Agreement, the
JES/LDI Agreement and related agreements and not pursuant to
the provisions of this Agreement.
1.21 The parties agree that the provisions of the Framework and
Implementation Agreement (including, without limitation, the
provisions of clause 16 (Wrong Pocket Assets and Liabilities),
clause 17 (Shared Assets and Shared Liabilities), clause 18
(SMWC and Employee Benefit Adjustment), Part D (Supervisory
Committee), clause 38.3 (Disputes), clause 53 (Arbitration),
and Schedule 6 (Financial Provisions) (including such
provisions as extended or modified by any other agreement
between the parties or their Affiliates) shall apply in order
to determine and establish the nature and extent of the
Outstanding Items and the parties to whom and by whom payment
should be made.
GALAXY AND VANDELA COSTS
1.22 The table in Part 3 of this Schedule shows the disposal costs
that have been incurred or will be incurred by the parties and
their Affiliates in relation to the disposal of Seagram
Venture Assets and Pernod Ricard On-Sale Assets (in each case
as defined in the Framework and Implementation Agreement).
1.23 The parties shall procure that such costs are recharged:
1.23.1 in a case where the disposal was made by a Jointly-owned
Entity, to that Jointly-owned Entity;
1.23.2 in a case where the disposal was made by Diageo (or an
Affiliate of Diageo) and Pernod Ricard (or an Affiliate of
Pernod Ricard), to the relevant disposing entities in the
Diageo Proportion and the Pernod Ricard Proportion.
3
RESTRUCTURING COSTS
The payments made pursuant to this Schedule are in full and
final settlement of all adjustments pursuant to the Framework
and Implementation Agreement and the JES/LDI Agreement for
Restructuring Costs.
AUDIT
The amounts of any Ongoing Items, Outstanding Items and any
costs referred to in paragraph 5.1 may, at the request of
either party, be subject to an audit. The scope of such audit,
and the rights and obligations of the parties and their
respective advisers in relation to it, shall be governed by
audit procedures which the parties shall endeavour to agree,
in good faith, as soon as reasonably practicable after such
request.
4
PART 2
TABLE
PAYMENTS TO BE MADE BETWEEN DIAGEO, PERNOD RICARD AND THEIR AFFILIATES(1)
1 2 3
- --------------------------------------------------------------------------- -------------------------- ------------------------
DIAGEO PLC PERNOD RICARD S.A.
SETTLEMENT ITEM US$ (UNLESS STATED) US$ (UNLESS STATED)
- --------------------------------------------------------------------------- -------------------------- ------------------------
RESTRUCTURING COSTS
- --------------------------------------------------------------------------- -------------------------- ------------------------
1. Settled Restructuring Costs(2) (8,759,000) 8,759,000
- --------------------------------------------------------------------------- -------------------------- ------------------------
SPECIAL ITEMS
- --------------------------------------------------------------------------- -------------------------- ------------------------
2. Brazil - indirect tax litigation and compliance provision (16,198,000) 16,198,000
- --------------------------------------------------------------------------- -------------------------- ------------------------
3. India - excise tax provision (8,891,000) 8,891,000
- --------------------------------------------------------------------------- -------------------------- ------------------------
4. Argentina - provisions for stamp duty, social security, 2,151,000 AR$ (2,151,000) AR$
impairment of assets etc.
- --------------------------------------------------------------------------- -------------------------- ------------------------
5. Korea - long term receivables (13,685,000) 13,685,000
- --------------------------------------------------------------------------- -------------------------- ------------------------
6. SPECIAL ITEMS (TOTAL)(3) US$(38,774,000) US$38,774,000
+ AR$2,151,000 + AR$(2,151,000)
- --------------------------------------------------------------------------- -------------------------- ------------------------
7. Trading balances(4) 11,373,000 (11,373,000)
- --------------------------------------------------------------------------- -------------------------- ------------------------
8. Brazilian and other venture brands - settlement in respect
of 60.9% of value of venture brands held by Seagram do Brasil(5) 3,045,000 (3,045,000)
- --------------------------------------------------------------------------- -------------------------- ------------------------
9. Additional assets/wrong pocket assets - adjustments in
relation to the reallocation of additional assets and wrong pocket assets (849,000) 849,000
- --------------------------------------------------------------------------- -------------------------- ------------------------
10. Don Julio - overhead allocation due from Tequila
Don Julio to Seagram de Mexico (22,000,000 Mexican peso) 22,000,000 Mexican peso
- --------------------------------------------------------------------------- -------------------------- ------------------------
11. Wrong pocket inventory - venture brands(6) (2,593,000) 2,593,000
- --------------------------------------------------------------------------- -------------------------- ------------------------
- -------------
(1) Figures in brackets denote payments to be made; figures not in brackets
denote payments to be received.
(2) Adjustment payments made pursuant to clause 17.2 of the Framework and
Implementation Agreement and clauses 7.3 and 7.4 of the JES/LDI Agreement
(3) Adjustment payments made pursuant to clause 18 of and Schedule 6 to the
Framework and Implementation Agreement and clause 9 of the JES/LDI Agreement (in
each case, as amended by the memorandum of agreement dated 21 March 2002)
(4) Adjustment payments made pursuant to clause 18 of and Schedule 6 to the
Framework and Implementation Agreement and clause 9 of the JES/LDI Agreement (as
amended by the March 2002 Agreement ad the August 2002 Agreement)
(5) Payment in respect of contingent receivable due to Treat Venture LLC
pursuant to the Contribution Agreement made between Gramet Holding Corp, JES and
Treat Venture LLC
(6) Adjustment payment made pursuant to clause 16 of the Framework and
Implementation Agreement
PART 3
GALAXY AND VANDELA COSTS
DIAGEO (OR AFFILIATEES) PERNOD RICARD (OR AFFILIATES) TOTAL
US$ US$ US$
- --------------------------------------------- ---------------------------- ------------------------------- -----------------
Amount to be invoiced to brand owning
entities 20,271,000 3,211,000
- --------------------------------------------- ---------------------------- ------------------------------- -----------------
Amount accrued/incurred by brand owning
entities 8,018,000
- --------------------------------------------- ---------------------------- ------------------------------- -----------------
28,289,000 3,211,000 31,500,000
- --------------------------------------------- ---------------------------- ------------------------------- -----------------
6
SCHEDULE 10
OUTSTANDING MATTERS
1. The obtaining of an order from a court of competent jurisdiction declaring
the share certificate numbered 5B0001 representing 18 million Ordinary
Shares of (Y)50 each in the capital of Kirin-Seagram Limited ("the Missing
KSL Shares") to be void and permitting the issue by Kirin-Seagram Limited
of a replacement share certificate representing the Missing KSL Shares, and
the transfer to Lawrenceburg Distillers and Importers, LLC of the shares in
Kirin-Seagram Limited held by JES.
The transfer of (a) share(s) in the capital of Seagram Export Foreign Sales
Corporation from a nominee shareholder and the issue of a new share certificate
to Treat Venture LLC in connection with the transfer of Seagram Export Foreign
Sales Corporation by Joseph E. Seagram & Sons, Inc. to Treat Venture LLC.
The obtaining of any shares and/or assets of Chatelle (Pty) Ltd. which were held
by Vivendi Universal S.A. prior to the Closing, in accordance with Section 2.3
of the Vivendi Sale Agreement. The sale of such shares in Chatelle (Pty) Ltd. to
a third party (the proceeds of such sale to be a Joint Asset).
2. The completion of the transfer from an Affiliate of Vivendi Universal to
Pernod Ricard and Diageo and/or Affiliates of them, of some of its the
shares in Seagram C.I. (Taiwan) Company Limited, the liquidation of that
company or alternatively arranging for Vivendi Universal or one of its
Affiliates to retain ownership of Seagram C.I. Taiwan) Company Limited.
The execution of the inter-company debt assignment agreement in the Agreed Form
as soon as practicable following execution of this Agreement and the
implementation of such assignment in accordance with its terms.
The sale to a third party or third parties of the Sabra brand (and any sale
proceeds are to be a Joint Asset), or the agreement of an alternative allocation
of the Sabra brand between the parties.
3. The sale of Seagram de Costa Rica S.A. and Alimentos Preparados S.A. to a
third party buyer, or the agreement of an alternative allocation of the
companies and their assets between the parties.
SCHEDULE 11
TREASURY MANAGEMENT
GENERAL PRINCIPLES
1 Cash on Deposit
Where any Jointly-owned Entity has a cash surplus, the Managing Party shall
invest such surplus to obtain the best market rate reasonably available.
2 Offshore Government Cash Restrictions
Where it is not legally possible to move cash out of a jurisdiction, cash shall
be transferred to a local Affiliate of the party to whom such cash is due.
3 Responsibility for Closing Down Operations Post-Execution of this
Agreement
In connection with the implementation of the Market Plans, the Managing Party
shall:
3.1 close down any bank facilities that are in the name of the Jointly-owned
Entity (including, without limitation, credit support facilities and
guarantees);
3.2 withdraw any comfort letters executed by the Managing Party for or on behalf
of the Jointly-owned Entity (and inform the Non-Managing Party to withdraw any
comfort letters executed by the Non-Managing Party for or on behalf of the
Jointly-owned Entity);
3.3 close down any bank accounts that are in the name of the Jointly-owned
Entity; and
3.4 provide written confirmation to the Non-Managing Party of the
completion of any of the actions described in Sections 3.1 to 3.3 of
this Schedule 11.
4 Treasury Representative
Each of the respective Treasury departments of Diageo and Pernod Ricard shall
notify to the other party's Treasury department the name and telephone number of
their respective representative responsible for Treasury matters in connection
with this Agreement or the Framework and Implementation Agreement (the "Treasury
Representative"). Each party may change its respective Treasury Representative
at any time by written notice to the other party's Treasury Representative.
5 Intercompany Indebtedness - Write-offs/Write-ups
If there is a dispute between Diageo and Pernod Ricard, on the one hand, and a
liquidator or other person (other than an Affiliate of Diageo or Pernod Ricard,
except where such Affiliate is acting in its capacity of as a liquidator)
responsible for completion of local actions required for the implementation of a
Market Plan in respect of any loan balances of a Jointly-owned Entity, (i) any
write-off and/or write-up of such loan balances shall be agreed in writing by
Diageo and Pernod Ricard and (ii) any such write-off and/or write-up shall be a
Joint Liability.
EQUITY MANAGEMENT PRINCIPLES
Where Diageo, Pernod Ricard and/or their respective Affiliates are required to
recapitalize or otherwise inject equity into any Jointly-owned Entity:
8
o Diageo and Pernod Ricard shall agree (i) the amount of such
recapitalization or equity injection (the "Recapitalization Payment")
and (ii) the date on which Diageo and Pernod Ricard or their
respective Affiliates shall make such Recapitalization Payment (the
"Recapitalization Date");
o Diageo or its Affiliates shall pay 60.9% of the total amount of any
Recapitalization Payment required to be paid to a Jointly-owned Entity
and Pernod Ricard or its Affiliates shall pay 39.1% of any
Recapitalization Payment required to be paid to a Jointly-owned Entity
without regard to the number of interests or shares of the
Jointly-owned Entity held by Diageo or Pernod Ricard or their
respective Affiliates;
o Diageo and Pernod Ricard or their respective Affiliates shall make any
Recapitalization Payment on the applicable Recapitalization Date. If
either Diageo or Pernod Ricard (a "Defaulting Party") fails to timely
make such Recapitalization Payment, interest shall accrue in
accordance with Section 11.5 of this Agreement;
o A Jointly-owned Entity shall not distribute or otherwise pay any cash
to a Defaulting Party or any of its Affiliates unless and until any
cash owed by the Jointly-owned Entity to the non-Defaulting Party has
been distributed or paid to the non-Defaulting Party;
o Where both Diageo and Pernod Ricard have made a Recapitalization
Payment, a Jointly-owned Entity shall thereafter distribute or
otherwise pay any cash owed to either or both of Diageo and Pernod
Ricard and/or their respective affiliates in the Diageo Proportion or
the Pernod Ricard Proportion, respectively;
o One the same day that a Jointly-owned Entity receives a
Recapitalization Payment, the Managing Party of such Jointly-owned
Entity shall confirm, or shall cause the liquidator of such
Jointly-owned Entity to confirm, in a written notice to Diageo and
Pernod Ricard's respective Treasury Representatives that such
Jointly-owned Entity has received the Recapitalization Payment; and
o In the first quarter of 2003, Diageo and Pernod Ricard shall agree a
process by which Pernod Ricard or an Affiliate of Pernod Ricard shall
pay to Diageo an amount equal to 39.1% of any Recapitalization Payment
required to be made by Treat Venture LLC to any Jointly-owned Entity
held directly or indirectly by Treat Venture LLC.
DEBT MANAGEMENT PRINCIPLES
Where any Jointly-owned Entity pays cash to Diageo or Pernod Ricard or their
respective Affiliates in satisfaction of any debt owed to Diageo or Pernod
Ricard or their respective Affilaties (a "Debt Repayment"):
o The applicable Jointly-owned Entity shall make such Debt Repayment as
soon as reasonably possible;
o The applicable Jointly-owned Entity shall make such Debt Repayment in
the currency of the jurisdiction of formation of such Jointly-owned
Entity;
o On the same day that a Jointly-owned Entity makes a Debt Repayment,
the Managing Party of such Jointly-owned Entity shall confirm, or
shall cause the liquidator of such Jointly-owned Entity to confirm, in
a written notice to Diageo and Pernod Ricard's respective
9
Treasury Representatives the amount of any Debt Repayment made to
either of Diageo or Pernod Ricard or their respective Affiliates; and
o In the first quarter of 2003, Diageo and Pernod Ricard shall agree a
process by which a Jointly-owned Entity that is directly or indirectly
held by Treat Venture LLC shall make a Debt Repayment to Treat Venture
LLC or to Diageo, Pernod Ricard or their respective Affiliates.
10
SCHEDULE 12
SOFIA IMPLEMENTATION PRINCIPLES
(a) Save where expressly provided otherwise in, or determined
pursuant to, this Agreement, the economic benefit and burden
(both past and future) of the Diageo Assets shall be for the
account of Diageo and/or its Affiliates.
(b) Save where expressly provided otherwise in, or determined
pursuant to, this Agreement, the economic benefit and burden
(both past and future) of the Pernod Ricard Assets shall be
for the account of Pernod Ricard and/or its Affiliates.
(c) Save where expressly provided otherwise in, or determined
pursuant to, this Agreement, the economic benefit and burden
(both past and future) of the Pernod Ricard On-sale Assets and
the Seagram Venture Assets (including the cost of acquisition
of those assets from Vivendi and any net proceeds of sale of
any of those assets) shall be for the account of Diageo and
Pernod Ricard (and/or their respective) Affiliates in
proportion to the Diageo Proportion and the Pernod Ricard
Proportion respectively.
(d) Subject to Schedule 5 of this Agreement, all transactions
effected to implement the terms of this Agreement shall be
effected in such a way as to minimise the Shared Tax Cost
suffered by the parties and their respective Affiliates and
the Shared Tax Cost shall be borne by Diageo and Pernod Ricard
in the Diageo Proportion and the Pernod Ricard Proportion
respectively.
(e) Where, as a consequence of the other SOFIA Implementation
Principles the FIA Implementation Principles and other terms
of this Agreement or the Framework and Implementation
Agreement, the economic benefit and burden of any costs or
liabilities is to be borne jointly by the parties, the parties
shall seek to minimise such costs or liabilities.
(f) Except as expressly set out in this Agreement, all
transactions effected to implement the terms of this Agreement
shall be effected in such a way as to maintain the principle
that the aggregate consideration ultimately paid by the
parties shall be borne by Diageo and Pernod Ricard in the
Diageo Proportion and the Pernod Ricard Proportion
respectively.
(g) All transactions effected to implement the terms of this
Agreement shall be effected in such a way as to prevent each
party from having access to commercially sensitive or
confidential information relating, where that party is Diageo,
to the Pernod Ricard Assets or the Pernod Ricard On-sale
Assets and, where that party is Pernod Ricard, to the Diageo
Assets, except where (i) it is mutually agreed that
information may be shared or (ii) to the extent that specific
provision is made in this Agreement provided that, in respect
of every category of Acquired Asset, in either case, all
applicable anti-trust laws and principles shall be observed.
(h) All transactions effected to implement the terms of this
Agreement in sharing either the economic benefit and burden
(both past and future) of the Pernod Ricard On-sale Assets and
Seagram Venture Assets in accordance with principle (c) above
of Shared Liabilities in accordance with Clause 6 or Historic
Tax Liabilities of whatsoever nature relating to any of the
Acquired Assets not recovered from Vivendi or its Affiliates
(as envisaged by Schedule 5) shall be effected in such a way
as to take fully into account both the tax effects of the
items being shared and the tax consequence of any transactions
effected to achieve such sharing (the intent here being that
any such sharing is done on a full after tax basis and by
Diageo in the Diageo Proportion and
11
by Pernod Ricard in the Pernod Ricard Proportion) PROVIDED
THAT this principle shall not apply to Taxes on payments made
pursuant to Clauses 4 to 6, 10 or 18.2.
12
Signed by )
) /s/ Shaun Parker
as attorney for and on behalf of )
DIAGEO PLC )
Signed by )
) /s/ Pierre Pringuet
for and on behalf of )
PERNOD RICARD S.A. )
13